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21 Cards in this Set
- Front
- Back
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Consequences of Marriage
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(1) an obligation of sexual exclusivity
(2) an obligation to economically support the spouse - a reciprocal obligation, the amount must be fair and reasonable as determined by the resources of each party However, no spousal immunity - spouses may sue each other |
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Marriage Termination
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(1) declaration of nullity - one party lacked capacity to marry in such a way that the marriage is completely void (no need for a judicial decree or order). Grounds:
(i) bigamy - more than one spouse. BUT if D had another spouse and that spouse passed away, the marriage is voidable subject to ratification (ii) incest - if close blood relatives, punishable by up to 6 months in prison (2) annulment - if there was a capacity problem that made the marriage voidable; the couple is legally married until they receive the annulment. Continued cohabitation after learning of a ground for annulment is considered a waiver. Unless otherwise stated, the SOF is 6 years. A jury trial is available unless the ground is related to a physical incapacity (3) legal separation - can be limited in time or permanent, does not severe marriage; the spouses cannot have intercourse with others while separated; obtained by a court proceeding but without jury (4) divorce (5) dissolution of marriage - if the spouse has been missing for a period of 5 years. P must show that he undertook a diligent search, must publish a request for 3 weeks that the spouse returns in an English-speaking newspaper; one of the spouses must have been a NY resident for at least one year or NY must have been the matrimonial domicile at the time of disappearance; afterwards, a will or the laws of intestacy are followed as though the missing spouse is dead |
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Special Defenses to Adultery
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D can prevent separation by asserting:
(1) recrimination - P is also guilty of adultery (2) condonation - P freely lives with the spouse after learning of the adultery (waiver) (3) connivance - P lured D into adultery (4) SOL - 5 years from the discovery of the adultery |
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Grounds for Annulment
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(1) age - generally, the marriage age is 18. Persons under 14 cannot marry; 14-15 - with the consent of the parents and a judge; 16-17 - with consent of both parents
(2) mental incapacity - a waiver is presumed if the incompetent becomes lucid and remains in the relationship (3) duress/force - a waiver if the threat is removed and the threatened spouse continues to cohabit (4) fraud - any misrepresentation or concealment going to a vital or essential aspect of the marriage, in the period prior to the wedding, if such an act actually induced the other party into marriage (e.g., about religion or about procreation or sex, but not about monetary issues. The SOF is 3 years from learning of the fraud. Otherwise the cause of action is waived; continued cohabitation is also deemed a waiver (5) physical incapacity - if a person suffers from an incurable physical condition that prevents engagement in sexual intercourse (but not the ability to have children!). The SOF - 5 years from marriage (6) five years of incurable insanity - three court-appointed psychiatrists must corroborate the incurable nature of the insanity |
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Grounds for Separation
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(1) Cruel and Inhuman Treatment - subjective, includes both physical (battery) and mental (constant belittling, spitefully paying romantic attention to others, refusing to be sexually intimate) mistreatment. Cohabitation after mistreatment is not an absolute defense
(2) abandonment - a voluntary departure by one spouse that is: i. without consent ii. without justification iii. with no intent to return (inferred from the length of absence or any surrounding circumstances) (3) constructive abandonment. No SOL. Examples: i. by locking the other spouse out of the house; the person who locked is the abandoner ii. refusal to have sex iii. refusal to interact with the spouse (4) 3 years of consecutive imprisonment - 5 years SOL from release from prison (5) failure to support - the injured party can receive economic support as part of the relief (6) adultery - has to be a sex act (i.e., including oral or anal sex). Spouses can testify that they are married and/or deny the adultery (including if D asserts recrimination). P cannot testify to prove the adultery - may provide third party testimony or circumstantial evidence |
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Grounds for Divorce
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(1) cruel and inhuman treatment
(2) abandonment - must have lasted for at least 1 full year (3) adultery (4) 3 years of consecutive imprisonment - same as for separation! (5) conversion of a separation decree ("conversion divorce") - if, after a judgment of separation has been granted, the parties live separate and apart for one year or more, either party may commence a divorce action based on the decree. The commencing party must prove that he has substantially performed all of the terms and conditions of the decree (6) written and acknowledged separation agreement - same as pursuant to a separation decree, but the spouses have to prepare a separation agreement rather than obtain a court decree (7) no-fault divorce - a party must state under oath that the relationship has broken down irretrievably for a period of at least six months. Divorce will not be granted until the parties have resolved (or the court has determined) all economic matters of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and expert's fees and expenses and the custody and visitation with the infant children |
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Temporary Maintenance
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While a matrimonial action is pending, temporary maintenance will be awarded if there is an income gap so that the payee's income is less than the payor's income and unless the parties have entered into an agreement providing for maintenance. Alternative calculations (the court will award the lesser as the presumptive award unless the court finds it unjust or inappropriate):
(1) 30% of the payor's income (up to $500,000), less 20% of the payee's income (2) 40% of the combined income of both parties (up to $500,00 of the payor's income), less the payee's income |
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Enforcing Maintenance
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Ways:
(1) seizure of property (2) attaching wages (3) take away driver's license (4) take away professional license (5) jailed for contempt of court |
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Duration of Maintenance
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Maintenance terminate:
(1) on death of either party (2) if the payee remarries or lives openly with another as if they were spouses A separation agreement can limit the years of payments or make payments post-death. |
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Separate Property
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(1) acquired before the marriage
(2) gifts or bequests from a non-spouse in sole name (3) personal injury compensation (4) property mutually agreed in writing to treat as separate (5) passive appreciation of separate property |
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Marital Property
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Examples:
(1) businesses (2) salaries (3) stock options (4) lottery winnings (5) pension rights (6) professional licenses (7) gifts from spouse (8) degrees earned during marriage |
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Rights of Non-Marital Children
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(1) the same rights as a marital child
(2) inherits from both biological parents (3) has standing to sue for wrongful death (4) entitled to governmental benefits (5) entitled to economic support from both parents through age 21 |
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Parties to a NY Marriage
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(1) husband
(2) wife (3) the State of NY |
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Traditional Marriage Ceremony
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(1) license - issued from the city clerk with a 24-hour waiting period. The ceremony must take place within 60 days of the issuance
(2) ceremony - must be a solemn declaration of marriage (solemnization) by an officiant (a member of the clergy, a judge, an executive officer of government, a judicial clerk, a ship captain, or anyone else who can legally administer a binding oath) + a witness |
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Personal Jurisdiction
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In actions for a monetary award, a court may exercise personal jurisdiction over the respondent even if he is no longer a NY resident or domiciliary, if the petitioner is a NY resident or domiciliary and:
(1) NY was the matrimonial domicile of the parties before their separation (2) D abandoned P in NY (3) the claim accrued under the laws of NY or under an agreement executed in NY |
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Non-Payment of Child Support Maintenance
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If a party moves out of jurisdiction and stops paying child support, apply:
(1) the Uniform Interstate Family Support Act - the court that entered the original support order has continuing exclusive jurisdiction over the support order (2) the Full Faith and Credit of Child Support Orders Act - every state must give full faith and credit to child support judgments entered by courts with proper jurisdiction and where both parties had opportunity to be heard (3) federal criminal law - if a parent falls one year behind in payments AND THE CHILD LIVES IN ANOTHER STATE |
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Modification of Child Support
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(1) if there has been a substantial change in financial circumstances - of either the payor or the recipient; a 15% or more change (both more and less) in a party's income, but a reduction must be involuntary and the party must have made diligent efforts to secure employment
(2) unless the parties specifically opted out, if three years have lapsed since the existing order was issued, modified, or adjusted |
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Calculating Child Support
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Both parents must support their children under age 21. NY will extend the age of mandatory support through the completion of college if:
(1) the child has the academic ability, AND (2) the parents have the means Calculation: (1) calculate each parent's income and combine them (2) apply the applicable percentage (17-35% depending on the number of children) to determine the basic child support obligation (up to $130,000) (3) prorate between parents based on their respective income |
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Termination of Parental Rights
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must show by clear and convincing evidence:
(1) abandonment (2) neglect (3) mental incompetence (4) abuse |
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Adoption
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can be done by a couple or by a single person. Anyone can be adopted if the goal is to establish a genuine parent-child relationship.
Requirements: (1) If adoptee is a child: i. consent of both biological parents or a legal custodian. Note: an unwed father has a right to veto an adoption if he promptly (measured in terms of the baby's life, not the father's awareness) manifests a willingness to establish a relationship with the child. OR ii. the adopting person must demonstrate that consent is legally unnecessary iii. if the adoptee is at least 14 years old, the adoptee's consent (2) the home of the adoptive parents is investigated (3) a 3-month trial period if the child is less than 18 years old (4) the adoptive order must be finalized in court |
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Situations When a Biological Parent's Consent Is Unnecessary
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(1) the parent has surrendered the child (put up for adoption)
(2) the parent is mentally incapacitated or lacks the ability to care for the child (3) abandonment (6 months without contact) (4) neglect - an imminent danger to the child and behavior falls below the minimum degree of care a reasonable parent would use |
