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43 Cards in this Set
- Front
- Back
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Heart Balm
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1. Breach of Promise to Marry
2. Seduction of an unmarried femeal 3. Alienation of Affections 4. Criminal Conversation 5. Jacitation of marriage NY Abolished and its a felony to file a claim |
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Prenuptional (Antenuptial)
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An agreement made by people who are engaged to be married.
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Prenup Enforceable if:
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1. Express Agreement
2. Consideration (Not for Sex) 3. Content |
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Prenup Requirements
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1. Freely Made (no duress)
2. Must be in writing, signed and acknowledged 3. Can not agree to: (a) A divorce (b) relieve liability to support the other spouse (c) can not be unconscionable (d) can not agree acts that are grounds of divorce |
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Non Marital Children
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children conceived or born out of wedlock are not marital children unless the parents thereafter become married (rights of marital & non-marital children are almost always same)
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Non marital children Rights
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1. Can inherit
2. Recover damages for wrongful death 3. workers compensation benefits. 4. Public assistance |
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Filiation
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paternity suit - litigation when the identity of the father is ambiguous; litigated in the Family Court; can litigate up to the child’s 21st birthday (purpose for child’s rights of inheritance). Can be commenced by mother, guardian, or even father sometimes
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What you need for filiation
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1. Burden of proof
2. mother’s testimony of sexual access to the father need not be corroborated 3. D’s evidence of sexual access between mother & other men MUST be corroborated 4. DNA/genetic testing evidence is admissible when offered by either party – if greater than 95% probability, that’s a rebuttable presumption (only way to rebut is to show total inability of access) |
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Ceremonial marriage
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Must occur at least 24 hrs from license but no more than 60 days
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Common law marriage
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NY does not recognize common law marriage
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Rights of Married Couples
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1. obligation to sexual exclusivity
2. duty to economic support |
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Duty to Economic Support of Married Couples
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1. Duty to provide fair and reasonable support
2. Needs Test - you must support your spouse enough to prevent her from becoming a public charge |
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Grounds for voiding marriage
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1. Bigamy
2. Incest |
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Annulment Grounds
(Voidable marriage) |
1. Incapacity - Non Age
2. Mental Defect 3. Fraud/Wrongfully obtained consent (duress, misreprentattion, or concealment) 3 yrs SOL 4. Incurable physical incapacity 5. Incrurable Mental Illness for 5 years |
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Annulment Grounds for Misrepresentation
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Misrepresentation about
1. religion 2. sex and procreation 3. money |
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Legal Seperation
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Definition:
Doesn’t terminate the marriage, but rather the court adjudicates child-custody & other issues, while maintaining formal marriage (i.e. if you have sex with another during legal separation, it is adultery) |
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Rationale for Legal Seperation
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(1) chance of reconciliation
(2) think divorce is wrong (3) tactical & strategic reasons (e.g. preserving rights under a will, filing a joint tax return) |
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Requirements for Legal Seperation
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1. Must be in writing
2. Signed by notary 3. Copy must be filed with court |
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Divorce Grounds
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No Fault not recognized in NY
1. Cruel and Inhuman treatment 2. Abandonment - 1yr minimum 3. Adultery 4. 3 consecutive yrs old imprisonment 5 Conversion divorce |
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Conversion Divorce
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1. Ct ordered seperation - apart for at least 1 yr at at end converts to divorce
2. Seperation agreement - if both parties agree to seperation agreement, apart for at least 1 yr, can convert to divorce |
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Conversion will not be granted if:
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1. Material provision of the seperation agreement is breached
2. seperation agreement was void as a result of fraud, duress, incapacity 3. must not cohabit with intent to reconcile. |
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Grounds for Legal Seperation
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1. Cruel and Inhuman Treatment
2. abandonment can be 1 day 3. 3 consecutive yrs in prison 4. Defendant neglects to support his spouse |
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Affirmative defenses that will defeat action for seperation
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1. Adultery
*Plaintiff must commence the action within 5 years from date of discovery of the adultery 2. Recrimination 3. Condonation 4. Convnivance |
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Recrimination
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If the other spouse committed adultery - Neither can use the ground if both committed adultery
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Affirmative defenses against action for legal seperatiob
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1. Recrimination
2. Condonation 3. Connivance 4. Adultery *Plaintiff must file within 5 yrs from date of discovery of adultery |
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Condonation
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meaning a forgiveness by the husband of his wife or by a wife of her husband, of adultery committed
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Connivance
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when the adultery was committed because of the spouse's procurment - set up
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Durational Residencey Requirement
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A. No prior residency in NY required if both parties are in NY on date matrimonial is commenced and the cause of action arose in NY.
OR B. **Plaintiff must be a NY domiciliary for a continuous period of at least one year IMMEDIATELY preceding the commencement of the matrimonial action provided plaintiff can establish anyone of the following: 1. Marriage occurred in NY 2. NY was the matrimonial domicile at some time during the marriage (even one day anytime in the past) 3. The COA arose in NY. **If can not meet under 1st two elements must show that the plaintiff is a NY domicilary for 2 years immediately preceding commencement of matrimonial. |
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Equitable Distribution
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Under NYDOL, will consider:
1) Duration of marriage 2) Age and health of spouses 3) The amount of the maintenance (alimony) award 4) Financial circumstances of the spouses before marriage, during marriage. 5) Tax consequences to the parties 6) Need of the custodial parent to own or occupy the residence 7) Loss of Pension or Inheritance rights 8) Wasteful dissipation of separate or marital property or a transfer without fair consideration 9) **Always mention – the court may consider any other factors which the court expressly finds just and proper. |
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Seperate Property
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1. any property owned before marriage
2. compensation for personal injury received during marriage 3. any property by gift or inheritance 4. passive increase or appreciation in the value of seperate property 5. Totten trust |
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Married Property
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1. Any appreciation of increase in value due to direct or indirect contribution of the other spouse.
2. Any property acquired by either spouse during marriage regardless of the form of title. |
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In order to distribute equitable distribution courts may do the following:
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1. order a sale of major assets
2. distribute the assets in kind 3. mix and match Marital fault not considered unless the conduct of one spouse is so egregious as to shock the conscious of the court. |
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Maintenance
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(alimony)
i. Support payments, absent an agreement court may order maintenance to meet the reasonable needs of a party as determined by the parties pre-separation standard of living. |
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Court may consider the following in determining maintenance
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1. Fault
2. Duration of marriage 3. standard of living 4. age and health 5. job skills 6. earning capacity 7. educational achievement |
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Modification of Maintenance
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Can petition must prove substantial change in circumstances
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Termination of Maintenance
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1. Death
2. If recipient remarries or lives openly with another person as if they were spouses then maintenance will stop 3. Modification of final judgment |
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Child Support
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NY courts apply a mechanical formula to determine the amount of the obligatiomn. The formula applies a fixed perecentage based on number of children to the combined gross incomes of the parents, then prorate the result between the parents based on respective income.
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Child custody courts will consider
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1. wishes and desires of the parties
2. wishes and desires of the children 3. age, health, physical, mental and environmental circumstances of the parent. 4. History of domestic violence 5. New relationship parents are in 6. Placement that will sustain relationships with extended family 7. parents are presumed to be better than non parents |
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Uniform interstat Family support Act
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1. Every state will defer to the home state where the child receives support
2. Can mail the order to the out of state employer who is obligated to withhold the support $ and remit to the spouse/child 3. The non-home-State will use compulsory process (attachment, garnishment) to obtain payment 4. State that makes original judgment has continuous jurisdiction – need to modify at original jurisdiction |
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Full Faith and Credit for Child Support
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Requires each state to enforce the child support orders of sister states (who had proper jurisdiction and both parties had an opportunity to be heard)
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Child Support Recovery Act
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Federal crime if you fall 1 yr or $5,000 behind in child support payments
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Uniform Child Custody Jurisdiction Act (UCCJA)
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requires all states to defer to the child’s home state
Cts of another states may not modify a decree of custody |
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Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA) – developed to replace the UCCJA
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Case where 2 states each have a significant connection with a party, but there is no “home state,” – jurisdiction lies in the state where an action is 1st filed
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