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domestic relations

Additional Law Flashcards




Unmarried Cohabitants
live together, but no plans to get married
express k between them is enforceable as long as consideration is something other than sex
NY will not imply k if no bargain exists
Pre-martial Agreement
deals with economic matters if couple who is planning on getting married ends up splitting up; no limitations on the scope of these

valid prenup agreement reqs: 1) in writing, signed by both parties, notarized; 2) freely made; 3) fair and reasonable at time it was made; 4) not unconscionable at the time of divorce (no hidden assets, etc.)
Right of a Non-marital child (bastard)
1) entitled to inherit from either birth parent
2) can sue for wrongful death
3) entitled to economic support from both parents
Identification of the bastard's father
2 methods

1) Filiation proceeding
- can be brought by mom, kid via guardian, or state of NY as long as before bastard's 21st bday
- need CLEAR AND CONVINCING evidence
- mom's testimony of sexual access with D need not be corroborated
- Ds evidence of sexual access with other people MUST be corroborated
- if offer DNA evidence and excludes D the case is over, but if tells us D has 95% chance of being the father the burden of proof shifts to D

2) Paternity by Estoppel
- man who erroneously represented himself as kid's dad can be estopped from denying paternity if the child has justifiably relied on that party's representation of paternity to his detriment
- also works the other way - mom who lived with someone other than filiation D puts name on birth certificate, then can be estopped from suing D
Marriage requirements
1) license (capacity)
2) ceremony --> which includes an officiant (to administer oath), witnesses, and exchange of promises

common law marriage NOT recognized in NY, but if entering into one in a different state where it is recognized NY will recognize it

same sex marriage is ok
Ways to terminate a marriage
1) declaration of nullity
2) annulment
3) legal separation
4) divorce
5) dissolution

(all of these litigated in Supreme Court as matrimonial causes of action)
Declaration of nullity
used when one party in the marriage lacked capacity to marry and capacity problem rendered the marriage voide

technically there never was a marriage and can just leave, but may want to get this declaration for 1) clarity of the record in case there's a dispute or 2) collateral issues to be resolved by the judge (who gets the car, etc.)

grounds for making a marriage void:
1) bigamy (must be single to get married)
2) incest (cannot marry ancestors or lineal relatives BUT ok to marry your first cousin or step-sibling)

bonus: incest is punishable by 6 months in prison, because its THAT gross
used when there's a capacity issue that makes marriage voidable, can't just leave must have judge grant annulment
BUT by continuing to cohabit after learning of problem or problem is removed, you waive the issue (cohabit = live together and have sex)

6 grounds
6 grounds for annulment
1) NON-AGE - one of the parties was too young, waivable if cohabit after turn 18 (must be 18, 16 w/consent of all parents, or 14 w/consent of all parents and judge to be valid)

2) MENTAL INCAPACITY AT TIME OF MARRIAGE - mental illness or developmental disbaility, often pursued by guardian, waivable if cohabit after person becomes lucid (but cannot ever waive if permanent condition)

3) DURESS - under threat of physical force (dad points gun to dude's head and tells him he's marrying his daughter); waivable if cohabit after threat of force is removed (what if dad threatened to shoot him if he finds out he left his daughter???)

4) FRAUD - misrep or concealment of info by fiance prior to the marriage that goes to an "essential aspect of the marriage"; waivable and 3 year SOL
("essential" things include religion type or intensity, ability to have kids or pregnancy, past prostitution, misrep sexual desires like crazy sadism; NOT essential if about money, property, or social status - poor golddiggers)

5) PHYSICAL INCAPACITY - incurable physical condition preventing safe and normal sex (presupposes no sex b4 marriage); cannot be waived by definition but 5 year SOL
**no jury trial for this one only (too embarrassing)

6) INCURABLE INSANITY ARISING AFTER MARRIAGE - must endure for 5 years and must have testimony of 3 court-appointed physicians agreeing on diagnosis
Legal separation
allows you to live separate and apart w/court permission; can be permanent or temporary (you set the terms)

leaves marriage intact (why do this? health insurance, taxes, pensions, religious reasons)


5 grounds
5 grounds for legal separation
1) CRUELTY - physical or mental abuse, must endanger well-being of innocent spouse and render it unsafe or improper to continue living together
(mental cruelty includes constant verbal abuse, degrading language, silent treatment, or abandonment of hygiene; if there is domestic violence, can also petition court for protective order)

2) ABANDONMENT of the marriage - D spouse voluntarily departed from marriage, w/o consent of other spouse, unjustified, w/no intent to return
- no SOL, can also have constructive abandonment via refusal to have sex

3) ADULTERY - sex voluntarily performed w/another person who is not spouse during marriage
- 5 year SOL
- 3 defenses to this: a) other person had an affair, too (recrimination) b) waiver by going back to cohabiting after learning of the cheating c) entrapment/luring other spouse
**proof must come from third party testimony, not spouse**


**remember this is only a ground for separation, not divorce**
6 grounds for divorce
note, the first 4 are the same as first 4 for legal separation


Step 1) Couple Separates - can be as the result of a litigated separation lawsuit OR mutual agreement
- separation agreements must be freely made, in writing, notarized, and must file with court if turn into a divorce
- if rescind a SA cannot use it as a basis of divorce (can rescind by physical destuction, executing new agreement, or cohabiting w/spouse w/intent to reconcile)
**cohabitation after court-ordered separation does NOT affect the agreement but material breach of it will inhibit right to convert, where cohabitation after own made separation agreement DOES destroy being able to use it**
- must live separate for 1 year
Step 2) Court converts separation into divorce

6) NO FAULT DIVORCE - marriage has irretrivably broken down lasting 6 months +; one party must testify so under oath; won't be entered into until all collateral issues (alimony, etc.) are resolved by agrement or adjudicated
used only when spouse has disappeared; requires that has been missing without any tidings for 5 years

Reqs: 1) must make diligent search 2) publish a request that spouse return for 3 consecutive weeks in English newspaper 3) P must have lived in NY for 1 yr or NY must have been matrimonial domicile at time of disappearance

no collateral issues, since you can't get alimony or child support from a disappeared person
Procedural and ethical issues with terminating marriage
as soon as case is filed, certain orders take effect, including forbidding sale of assets, change in insurance coverage, and incurring unusual debts

parties must make full financial disclosure and file tax returns
cash from spouse to spouse; ONGOING OBLIGATION

get it if show economic need by spouse; there are 19 factors (including marital fault, age, health, earning capacity, property, and any other fact that is "just and proper")

can get temporary maintenance while case is pending; also presumption that weaker spouse should get counsel fees

Modification - either payor or receivor can go back to court, need evidence of a SUBSTANTIAL CHANGE IN CIRCUMSTANCES and can never modify arrears
**if maintenance is in the separation agreement as opposed to court imposed, must show EXTREME HARDSHIP to change***

Termination - ends upon death of either party, if recepient remarries or cohabits with another person, or if there is an express provisions stating otherwise

Enforcement - can seize bank account, enter a wage reduction order, take away drivers license, deny recreational licenses, and even put in jail b/c not paying = in contempt of court
Property division
2 steps - classify and distribute

1) husband's or wife's separate property
- includes any asset owned by a spouse prior to marriage, gift or bequest solely in his/her name, anything agreed to treat as separate, any pain and suffering awards, and any appreication in value of items above UNLESS due to the other spouse's active effort (staying at home to let the other person appreciate their biz = active participation)

2) marital assets - everything acquired during marriage, including any money converted into an asset or account; includes pension benefits and value of professional license/degree acquired during marriage
**avoid double counting of a degree; if give more in maintenance b/c of higher salary due to degree, then don't give the value of that degree again**

- each keep their own
- based on a bunch of factors, the marital assets are split up
(factors include loss of health insurance upon dissolution, loss of inheritance rights upon dissolution, need of child's parent to occupy marital home; but DON'T consider marital fault unless EGREGIOUS)
- can be split up individually, or one of the parties can take them all and give the other a cash award for the % that belongs to the other spouse
Termination of parental rights
**heard by Family Court & parent entitled to court-appointed counsel**

-this severs bond between birth parent and kid and lets kid be adopted
-cases that may lead to this include abandonment (failure to visit/communicate with kid for 6+ months), permanent neglect (parent fails to maintain substantial contact with or plan for future of a kid already removed from home), abuse (physical or sexual), mental illness/developmental disability making it impossible to parent, murder of a kid's sibling
anyone ok to adopt (single, married, unmarried cohabitants, married but separated adult); married minor can adopt spouse's kids

anyone ok to BE adopted, including adults

court cannot force an open adoption, but parties can agree to it

procedure: contact agency, obtain all necessary legal consent (biological parents if minor, adoptee if over 14, consent of state if in state custody, but DONT need consent from parent whose rights terminated), interviews, background checks, home studies, 3 month trial placement, and judicial proceeding to finalize

NY policy prefers religious matching when possible
Child support
lasts until age 21, can be extended through college

arises in 2 cases - after divorce or after non-marital child filiation proceeding

guidelines are based on % combined parental incomes and # of kids (but can agree to any amount in a separation agreement as long as informed of the guidelines and subject to court modification)

can be modified based on change of circumstnaces; ALWAYS entitled to ask for modification if 3 yrs have passed since judicial review OR income has gone up or down 15%

enforcement is same as marriage; no entitlement to appointment of counsel if indigent as long as there are other procedural safeguards (like court making express finding that has ability to pay, forms, allow opportunity to respond to any statements made about fin status)
Child custody

factors include: health of all parties, financial status, absue, crim activity, new partner, allowing siblings to stay together, joint custody cooperation/living near one another

non-parent versus parent - nonparent only prevails by showing NON-FITNESS of biologiacal parent or extraordinary circumstances

relocation of custodial parent - must get court permission before doing so, and show that relocation is in best interest of the child
Visitation rights
non-custodial parent almost always granted; interference with such rights is to be in contempt of the court (so, can be jailed)

petition for visitation by people like g-parents - must make showing of special circumstances establishing a special state interest
Marriage conflict of laws shit
NY recognizes marriage taking place in another state unless violates a prohibitory policy (bigamy, incest)

divorce in another state gets full credit, also from another country due to comity
- res judicata as to eveyr issue that could have been raised
- presumed valid, but can be attacked by showing spouse wasn't domicile in that forum
- ex parte foreign divorces (one spouse does alone) NOT recognized

support orders entered out of state - all other states must defer and initial state has continuing exclusive jurisdiction unless both parent AND kid leave

custody - state can enter into initial custody order if kid's home state (6 months+), all other states must defer b/c state has continuing exclusive jurisdiction
- felony to remove a kid under existing custody order out of NY
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