Domestic Relations

Front 1

agreements b/w cohabitants

Back 1

NY will enforce an EXPRESS agreement, if consideration other than sex; will not enforce an IMPLIED agr / won't "do equity"

Front 2

ante-nuptial agreements

Back 2

can deal w/anything; enforcement subject to SoF, duress, unconscionability; can't pre-agree on divroce or permission to engage in conduct that would be grounds (adultery)

Front 3

establishing paternity

Back 3

mom or child thru guardian or state of NY brings a filiation proceeding b/f kid hits 21; SoP: C&C; if mother testifies to sex w/D, no corrob req; if D testifies that mom had sex w/other, need corrob

Front 4

gifts in contemplation of marriage

Back 4

can be recovered back (engagement ring, not xmas gift)

Front 5

duties of being married

Back 5

"reciprocal duty to provide fair and reasonable support"; the other spouse will be liable for debt incurred for necessaries

Front 6

5 ways to terminate marriage, overview

Back 6

declaration of nullity; annulment; legal sep; divorce; dissolution

Front 7

declaration of nullity

Back 7

bigamy or incest -> technically, the declaration is not necessary

Front 8

reasons for annulment, overview

Back 8

nonage; mental incapacity at time of marriage; duress; fraud; physical incapacity; incurable insanity

Front 9

nonage

Back 9

reason for annulment; must be > 18, or above 14 and permission; if you continue to cohabitate after 18, you lose

Front 10

mental incapacity at time of marriage

Back 10

reason for annulment; "want of understanding" - usually filed by family member on behalf of crazy mother; but if you regain sanity and continue to cohabitate, it's waived

Front 11

duress

Back 11

reason for annulment; shotgun wedding; but waived if you continue to cohabitate after threat is gone

Front 12

fraud

Back 12

reason for annulment; one fiancee lied or concealed "information that goes to an essential aspect of marriage" ; waivable; misrepresentation about religion; lying about sex or procreaton; BUT NOT misrep re: money

Front 13

physical incapacitation

Back 13

reason for annulment; incurable phys condition that prevents safe and normal sexual intercourse; 5 year SoL; no jury trial

Front 14

incurable insanity

Back 14

reason for annulment; five years of incurable insanity first manifesting after the wedding; need 3 ct appointed physicians to concur

Front 15

SoL for annulment

Back 15

default is 6 years if no other specified

Front 16

legal separation, overview

Back 16

not b/f jury; grounds: cruel & inhuman treatment; abandonment; adultery; imprisonment, 3 years; failure to support

Front 17

abandonment

Back 17

grounds for sep; must be (1) voluntary deptarture; (2) w/o consent; (3) w/o justification; (4) no intent to return; for any period of time; constructive desertion counts (sofa or refusal to have sex)

Front 18

adultery

Back 18

grounds for sep; defenses: recrimination (dirty hands -> deny relief to P who is also having an affair); condonation (he condones the cheating); connivance (P entrapped her); 5yr SoL from *discovery* of cheating

Front 19

testimony on adultery

Back 19

CANNOT testify to the adultery even if saw it; so normally 3rd party or circumstantial evidence; prostitutes and private detectives have to be corroborated

Front 20

grounds for divorce

Back 20

cruel & inhuman treatment; abandonment (must be 1 year); adultery; imprisonment (3 yrs); [NOT failure to support]

Front 21

conversion divorce

Back 21

after sep order or sep agr, living apart for 1 year;

Front 22

separation agreement

Back 22

no fault; after 1 yr, conversion divorce; no duress, in writing (SoF), must be notarized

Front 23

recission of sep agr

Back 23

agreement is rescinded by cohabitation w/intent to reconcile, which starts clock ticking (but random sex doesn't count)

Front 24

material breach of sep agr

Back 24

precludes conversion divorce

Front 25

dissolution

Back 25

if spouse disappeared (i.e. dead); need evidence of missing w/o TIDINGS for 5yrs; need diligent search & publication

Front 26

residency reqs for marriage termination

Back 26

none if both live in NY and grounds in NY; if one lives in NY for 1 yr PLUS factor (married in NY; or lived in NY as spouses; or grounds in NY); or if one lives in NY, then 2 yr residency req

Front 27

personal jurisdx for divorce, sep, annul

Back 27

none needed of D!

Front 28

personal jurisdx for economic issues

Back 28

NY domicile; OR matrimonial long arm (once lived in NY; P was abandoned in NY; or any claim under an agreement governed by NY State law)

Front 29

service of process for matrimonial

Back 29

must be personal service, unless ct order;

Front 30

jury for marriage tertmination

Back 30

always, execpt lawsuits for separation or annulment based on physical incapacity

Front 31

IIED b/w spouses

Back 31

none

Front 32

prof resp for DR matters

Back 32

may not take a security interest in CL's house; lawyer can't have sex w/DR clients

Front 33

maintenance

Back 33

(alimony); temporary while petition is pending; then permanent, based on NEEDS of spouse;

Front 34

conversion divorce & maintenace

Back 34

parties can incorporate provisions into sep agreement and court will usually enforce; but close scrutiny if overreaching

Front 35

modification of support order

Back 35

can petition for modification if SUBSTANTIAL change in circumstances; higher burden if paying pursuant to K instead of court order - need EXTREME hardship

Front 36

what can be done if arrearages

Back 36

seize assets; attach wages; take away driver's or professional licenses; also contempt

Front 37

separate propery

Back 37

assets owned prior to marriage; bequests or gifts in sole name; any property they AGREE is separate; personal injury compensation; passive appreciation of these (not active)

Front 38

marital property

Back 38

doesn't matter how it is actually titled, unless agree/treat; a professional license or degree is marital property;

Front 39

equitable distribution of marital property

Back 39

don't consider fault; otherwise, ct can do anything it wants

Front 40

surrogate motherhood

Back 40

contracts are illegal; seen as abby selling

Front 41

who can be adopted?

Back 41

anyone if goal is to establish a bona-fide parent-child relationship; if under 18, need consent of parents; if > 14, need adoptee's consent too

Front 42

termination of family rights

Back 42

need C&C evidence; grounds: abandonment, neglect, abuse, mental incompetence

Front 43

child support

Back 43

parents have duty to support -> 21; or thru college if smart kid, rich parents; support is conditioned on obedience to reasonable demands of parents

Front 44

child custody standards

Back 44

"best interests of child standard"; wishes of child if > 12; health of parents;

Front 45

non-parent petition for custody

Back 45

only if strong showing of (1) unfitness of natural parent or (2) extraordinary circumstances (e.g. w/grandparents for > 2 years)

Front 46

visitation

Back 46

almost never denied; parents can veto a grandparent visitation order

Front 47

recognizing foreign marriages

Back 47

if valid where done, valid in NY; unless violates strong PP

Front 48

recognizing out of state divorce

Back 48

bilateral - if both spouses participated, that's valid in NY; ex parte - if only one participated, prima facie valid in NY if D was served with process; out of country recognized if bilateral, NOT if ex parte

Front 49

UIFSA

Back 49

uniform interstate family support act; state that entered orig child supprot order has exclusive jurisdx until ALL parties leave the state;

Front 50

UCCJEA

Back 50

unifrom child custody jurisdx & enforcement act - you can't forum shop for child custody; all determinations go back to the issuing state (the home state of child);