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50 Cards in this Set

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agreements b/w cohabitants
NY will enforce an EXPRESS agreement, if consideration other than sex; will not enforce an IMPLIED agr / won't "do equity"
ante-nuptial agreements
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)
establishing paternity
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
gifts in contemplation of marriage
can be recovered back (engagement ring, not xmas gift)
duties of being married
"reciprocal duty to provide fair and reasonable support"; the other spouse will be liable for debt incurred for necessaries
5 ways to terminate marriage, overview
declaration of nullity; annulment; legal sep; divorce; dissolution
declaration of nullity
bigamy or incest -> technically, the declaration is not necessary
reasons for annulment, overview
nonage; mental incapacity at time of marriage; duress; fraud; physical incapacity; incurable insanity
nonage
reason for annulment; must be > 18, or above 14 and permission; if you continue to cohabitate after 18, you lose
mental incapacity at time of marriage
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
duress
reason for annulment; shotgun wedding; but waived if you continue to cohabitate after threat is gone
fraud
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
physical incapacitation
reason for annulment; incurable phys condition that prevents safe and normal sexual intercourse; 5 year SoL; no jury trial
incurable insanity
reason for annulment; five years of incurable insanity first manifesting after the wedding; need 3 ct appointed physicians to concur
SoL for annulment
default is 6 years if no other specified
legal separation, overview
not b/f jury; grounds: cruel & inhuman treatment; abandonment; adultery; imprisonment, 3 years; failure to support
abandonment
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)
adultery
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
testimony on adultery
CANNOT testify to the adultery even if saw it; so normally 3rd party or circumstantial evidence; prostitutes and private detectives have to be corroborated
grounds for divorce
cruel & inhuman treatment; abandonment (must be 1 year); adultery; imprisonment (3 yrs); [NOT failure to support]
conversion divorce
after sep order or sep agr, living apart for 1 year;
separation agreement
no fault; after 1 yr, conversion divorce; no duress, in writing (SoF), must be notarized
recission of sep agr
agreement is rescinded by cohabitation w/intent to reconcile, which starts clock ticking (but random sex doesn't count)
material breach of sep agr
precludes conversion divorce
dissolution
if spouse disappeared (i.e. dead); need evidence of missing w/o TIDINGS for 5yrs; need diligent search & publication
residency reqs for marriage termination
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
personal jurisdx for divorce, sep, annul
none needed of D!
personal jurisdx for economic issues
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)
service of process for matrimonial
must be personal service, unless ct order;
jury for marriage tertmination
always, execpt lawsuits for separation or annulment based on physical incapacity
IIED b/w spouses
none
prof resp for DR matters
may not take a security interest in CL's house; lawyer can't have sex w/DR clients
maintenance
(alimony); temporary while petition is pending; then permanent, based on NEEDS of spouse;
conversion divorce & maintenace
parties can incorporate provisions into sep agreement and court will usually enforce; but close scrutiny if overreaching
modification of support order
can petition for modification if SUBSTANTIAL change in circumstances; higher burden if paying pursuant to K instead of court order - need EXTREME hardship
what can be done if arrearages
seize assets; attach wages; take away driver's or professional licenses; also contempt
separate propery
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)
marital property
doesn't matter how it is actually titled, unless agree/treat; a professional license or degree is marital property;
equitable distribution of marital property
don't consider fault; otherwise, ct can do anything it wants
surrogate motherhood
contracts are illegal; seen as abby selling
who can be adopted?
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
termination of family rights
need C&C evidence; grounds: abandonment, neglect, abuse, mental incompetence
child support
parents have duty to support -> 21; or thru college if smart kid, rich parents; support is conditioned on obedience to reasonable demands of parents
child custody standards
"best interests of child standard"; wishes of child if > 12; health of parents;
non-parent petition for custody
only if strong showing of (1) unfitness of natural parent or (2) extraordinary circumstances (e.g. w/grandparents for > 2 years)
visitation
almost never denied; parents can veto a grandparent visitation order
recognizing foreign marriages
if valid where done, valid in NY; unless violates strong PP
recognizing out of state divorce
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
UIFSA
uniform interstate family support act; state that entered orig child supprot order has exclusive jurisdx until ALL parties leave the state;
UCCJEA
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);