Yes, UNLESS the only consideration for the contract was sex.

Caveat: if there was no contract, court will not imply one b/w unmarried co-habitants merely b/c of their relationship.

1. In writing and signed by the parties

2. Freely made - no duress

3. Fair and reasonable at the time it was made

4. Not unconscionable at the time of divorce

Same as marital children:

1. Can inherit from both mother and biological father (issue is proving biological father)

2. Can sue for wrongful death of a parent

3. Entitled to economic support from both parents until the age of 21 (or through college)

1. The mother

2. The child, acting through a guardian

1. Must have clear and convincing evidence that ∆ is the father

2. Mother's testimony of ∆'s sexual access does not need to be corroborated, but ∆'s testimony of other men's sexual access of the mother must be corroborated.

3. If DNA shows that ∆ is father by 90%+, burden shifts to ∆ to prove he is not the father.

A man who has erroneously represented himself as a child's father can be estopped from denying paternity if the child has detrimentally relied on that representation.

Similarly, if mother has been living with a man who she represented as a child's father and whose name is on the child's birth certificate, she cannot bring a filiation proceeding against someone else.

Need 3 things: 

1. A certificate - shows that one has capacity to get married

2. A ceremony - must have an officiant to conduct the ceremony and a witness

3. Have to exchange promises - "solemn declaration that you are taking on a new status as husband or wife"

No. New York does not recognize common-law marriage.

Note - if JH and KW had been in Texas for the last 15 years, and then moved to NY, NY would recognize it - NY recognizes common law marriages entered into in states where common law marriage is allowed.

Used to end a marriage when one party in the marriage lacked capacity to marry and the capacity problem rendered the marriage void.

Note - a null marriage is void from the beginning - the declaration is just to get a legal record of it.

Bigamy and incest

Neither are waivable.

Used to end a marriage when a capacity defect renders the marriage voidable.

Annulment is not automatic; it's in the court's discretion.

1. Nonage - one of the parties was too young

2. Mental incapacity at time of marriage - mental illness or developmental disability

3. Duress

4. Fraud - concealment of info prior to marriage - must go to an essential aspect of the marriage

5. Physical incapacity - prevents safe and normal sex

6. Mental illness enduring for 5 years

1. Nonage: continuing to live w/ spouse after minor spouse becomes of age

2. Mental incapacity: incapacitated spouse continues to co-habit after period of lucidity (impossible if condition is permanent)

3. Duress: continued co-habitation after threat of force has ceased

4. Fraud: continued co-habitation after fraud is revealed

5. Physical incapacity: continued co-habitation after incapacity is revealed

6. No waiver of mental illness of 5 years - also no SOL - it's a continuing condition

Lying about: 

1. Religion

2. Procreation (inability to have kids) or sex (used to be prostitute)

1. Cruel and inhuman treatment: endangers the physical or mental well-being of the spouse as to render it unsafe or improper to continue co-habitation.

2. Abandonment

3. Adultery

4. Three years of consecutive imprisonment

5. Failure to support

1. ∆ spouse voluntarily departs from the marriage

2. W/o the consent of the other spouse

3. The departure is unjustified

4. No intent to return (inferred from circumstances)

*No specific period of abandonment required for legal separation (contra divorce)

* Can have constructive abandonment - parties still reside together, but don't have sex

1. Recrimination: other spouse is also guilty of adultery

2. Condonation: other spouse learns of adultery but continues to co-habit

3. Connivance: other spouse lured ∆ spouse into the adultery

4. 5 year SOL

1. Cruel and inhuman treatment

2. Abandonment for at least a year

3. Adultery

4. Three years of consecutive imprisonment

5. Conversion divorce

6. Irretrievable breakdown of marriage (no-fault divorce)

1. Couple separates and live separate for a year under either (a) a separation decree or (b) a separation agreement

2. After a year, go back to court and ask for a divorce

Rescinding:

1. Destroying the separation agreement, or separate document nullifying the separation agreement

2. Co-habiting w/ spouse w/ intent to reconcile

3. Material breach of separation agreement

Rescinding only effects a conversion divorce based on a separation agreement - co-habitation has no effect on a court-ordered separation decree

However, material breach of a separation decree may make it impossible to get a conversion divorce.

1. In writing, signed by the parties, and acknowledged before a notary

2. Entered into w/o fraud or duress

3. Must be filed w/ court in order to get conversion divorce

4. Not effective for conversion divorce if it has been rescinded

1. Spouse has been missing w/o tidings for 5 years

2. A diligent search has been made

3. Remaining spouse has published a request for missing spouse to return for 3 consecutive weeks in English-language newspaper

4. Remaining spouse must have lived in NY for at least a year, or NY was place of matrimonial domicile at time of disappearance.

1. Main consideration is requesting spouse's need

2. Marital fault

3. Spouses' age and health

3. Earning capacity: job skills, educational attainment, chronic medical condition, other barriers to work

4. What property will be owned by each spouse after marriage

5. Which party will be the custodian of minor children

Anytime, but must show change in circumstances.

If maintenance was set out in separation agreement, burden is higher - must show extreme hardship.

Modification is prospective only - cannot request modification of arrears.

1. Death of either party (though this can be contracted around)

2. Recipient remarries or co-habits with another person.

1. Seizure of obligor's property

2. Wage reduction order

3. Taking away driver's license

4. Taking away professional licenses

5. Denying recreational licenses

6. Jail for contempt

Property that belongs to each spouse separately; can't be equitably divided in distribution of assets in divorce.

Includes:

1. Assets owned prior to marriage

2. Any bequest or gift received after marriage in one spouse's sole name

3. Property that spouses agree to treat as separate property

4. Pain and suffering awards

5. Appreciation in the value of the above items - so long as appreciation is not attributable to the efforts of the other spouse

All property acquired after marriage - subject to equitable distribution by judge in divorce

Doesn't matter who bought it or whose name is on the title - all property acquired after marriage counts.

In NY, this includes professional degrees earned after marriage - other spouse gets value by which professional spouse's earnings were increased by the degree over the lifetime of the marriage.

Also includes appreciation of separate property where the increase in value was due to the other spouse's efforts.

1. Loss of health insurance upon end of marriage

2. Loss of inheritance rights

3. Need for custodian of child to occupy marital home

4. NOT fault - unless the fault was egregious (shocks the conscience)

1. Abandonment: failure to visit or communicate w/ the child for at least 6 months

2. Permanent neglect: child is in state custody and parent fails to maintain substantial contact or make plans for the child's future - at least 1 year

3. Abuse (severe or repeated)

4. Mental illness or developmental disability making it impossible to parent

5. Murder of sibling of child in question

1. Contact and establish a relationship with an adoption agency

2. Obtain all necessary legal consents or demonstrate that they are not necessary

3. Investigate prospective parents - background check

4. Judicial proceeding finalizing adoption

1. A single adult

2. Two unmarried co-habiting adults

3. Two married adults

4. A married minor - can adopt spouse's children

5. Married but separated adult - can adopt singly

1. Biological parents, if adoptee is a minor (unless parental rights have been terminated)

2. Adoptee, if she is over 14

3. The custodian, if it is someone other than the biological parents

4. The state, if the child is in the custody of the state

Statutory guidelines - table of percentages based on the number of children.

% based on number of children applied to combined income of both parents, with pro rata application of the result based on each parent's income

Yes, but the agreement must state that the parents are aware of the guidelines.

The agreement is subject to court approval and modification, and usually is effective only if it provides for more support than what is set out in the statute.

Entitled to ask for modification if (1) 3 years have passed since last C/S review, or (2) a parent's income moves up or down by 15%.

Can also be requested if a change in circumstances can be demonstrated (e.g., losing a job)

S. Ct.: not if there are adequate procedural safeguards

Must inform the indigent parent what the issue is (ability to pay), give form that will elicit relevant financial info, give parent an opportunity to respond, etc.

Court must make an explicit finding that the parent is able to pay.

a.     Health of all parties considered – both physical and mental

b.     Financial and educational circumstances of the parent – ability to provide material necessities and luxuries

c.     History of domestic violence – nearly disqualifying if one parent engaged in DV

d.     Criminal activity, even if not criminal activity directed at other members of the family

e.     Whether either parent has a new companion

                                               i.     If so, look at what kind of person that is

f.      Placement that would allow children to stay together

g.     For joint custody: whether parents are cooperative and get along w/ each other

                                               i.     See whether they live near each other.

Must make a showing of special circumstances - more than just best interests of child analysis.

S. Ct. has held that parents have a right to decide how to raise their own children - courts can't force grandparental visitation on them just b/c court feels like it's in child's best interest.

Yes - any single adult can adopt any other person, provided she goes through the steps to adoption.

1. Adoption agency

2. Legal consents, or demonstrate that they are not needed

3. Investigation of prospective parent

4. Judicial proceeding to finalize adoption

Yes - NY recognizes all marriages that were celebrated in other states - EXCEPT if the marriage violates public policy (bigamy and incest).

E.g., if Bill marries Barb, Nicki, and Marge validly in Utah, he cannot move to NY and have the marriages recognized there.

Yes.

1. If both spouses participated in the divorce proceeding, the divorce gets FF&C and is res judicata as to all issues in the divorce.

2. If divorce was obtained ex parte, it is valid in NY, but can be collaterally attacked by showing that the spouse who obtained it wasn't domiciled in the forum.

Only if both spouses actually participated - recognized under the principle of comity.

If the foreign country divorce was obtained ex parte, it is invalid.

No - the UIFSA provides that once an initial support order has been entered, the initial court has continuing jurisdiction over that order.

Iowa has jurisdiction over the order until neither Tom, Katie, nor Suri live in Iowa.

The child's home state

Home state: any state where the child has lived with a parent for 6 continuous months prior to the entry of the order

Whenever ANY spouse resides in NY.

The marriage is the "res" and the NY Supreme Court has in rem jurisdiction over it.

NY has a special matrimonial long-arm statute: 4 bases for PJ in a matrimonial action

1. NY was matrimonial domicile of the spouses prior to their separation

2. The ∆ spouse abandoned π spouse in NY

3. ∆'s monetary obligation accrued under a separation agreement entered into in NY

4. ∆'s monetary obligation accrued under the laws of NY

ONLY if the π spouse is seeking support or other collateral issues in connection w/ the matrimonial action.

If the only thing the NY court is hearing is the matrimonial action, no PJ over ∆ spouse is necessary.

They are a SUBSTANTIVE component of a matrimonial action - if π hasn't satisfied them, NY Supreme Court still has SMJ, but π has failed to state a claim.

1. If both π and ∆ are residents of NY, they are satisfied.

2. If π has lived in NY for a year, they are satisfied if (a) marriage was entered into in NY, (b) NY was spouses' matrimonial domicile, or (c) grounds for divorce arose in NY

3. If either party has been a NY resident for 2 years prior to the action, they are satisfied.