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59 Cards in this Set
- Front
- Back
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When will a prenuptial agreement be enforceable in NY?
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Contingent on marriage occurring, PLUS:
1. No duress 2. in writing, signed by the parties and acknowledged or proven in the manner required to record a deed 3. Cannot contain provisions requiring dissolution of the marriage or providing for procurement of grounds for divorce 4. No unconscionable agreements 3. |
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What are the requirements for a ceremonial marriage?
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1. Capacity
a. must be single b. intended spouse cannot be of same sex c. cannot be a prison inmate serving a life sentence 2. A License (failure to procure one, however, will not render marriage void) 3. Ceremony a. solemn declaration b. proper officiant 3. Ceremony |
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What are the requirements for a contractual marriage?
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1. contract must be subscribed in NY by parties AND 2 witnesses
2. It must state the residence of the parties, residence witnesses, date and place of marriage, be acknowledged by parties & witnesses in front of judge of a court of record in NY state |
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What is the level of economic support, required by statute, that spouses owe one another?
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Must be "fair and reasonable"
Can use means test or needs test |
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What are the "heart balm" actions?
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Abolished in NY, used to be the following:
1. breach of promise to marry 2. seduction of an unmarried female 3. Alienation of Affections 4. Criminal Conversation 5. Jactitation of Marriage |
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What marriages are automatically VOID (no need to get court order)?
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1. Bigamy
2. Incest Both are non-waivable |
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What are the possible grounds for an annulment where marriage not automatically void?
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1. Nonage - waivable if spouse attains age of legal consent and continues to cohabit
2. Mental Defects - voidable because party incapable of consenting to marriage for lack of understanding 3. Force or Duress 4. Fraud 5. Incurable Physical Incapacity 6. Incurable Insanity Lasting at least 5 years |
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What is the SOL for a petition for annulment on grounds of nonage?
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6 years; waivable
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What is SOL for a petition for annulment on grounds of mental defect?
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If no relative brings action, court may allow anyone to bring the action as a next friend ANY TIME during the lifetime of both parties to the marriage
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What is SOL for petition for annulment on grounds of force or duress?
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1. action can be brought at ANY time by plaintiff who was forced
2. During lifetime of other party by parent, guardian etc. of person whose consent was forcefully obtained |
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What is SOL for fraud in the inducement claim as grounds for annulment?
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1. If P is the defrauded party, must be brought within 3 years from when plaintiff discovered the relevant facts. In any event, must bring within 3 years of learning of fraud.
Waiver if voluntarily cohabit after learning of fraud |
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Where ground for annulment is fraud in the inducement, what types of situations will qualify?
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Remember: must be something that plaintiff might have based decision to marry on
1. Misrepresentation about religion 2. Misrepresentation about procreation or sex NOTE: fraud regarding economics usually NOT enough |
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SOL for incurable physical incapacity as grounds for annulment
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6 years; waivable
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SOL for incurable insanity as grounds for annulment?
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never time-barred and non-waivable.
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What are the grounds for a legal separation?
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1. Cruel and Inhuman Treatment: must describe abuse and consequences of abuse (physical or emotional)
2. Abandonment 3. Adultery 4. Three Years Consecutive Imprisonment 5. Failure of economic support |
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What Will Constitute Abandonment for purposes of separation?
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1. Physical: (i) actual departure from the home; (ii) intent never to return; (iii) without consent; (iv) without justification
2. Constructive Abandonment: things like refusal to engage in sexual intercourse and changing locks |
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Definition of adultery in NY?
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An act of sex or deviant sex voluntarily performed with another person who is not your spouse while married.
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Special Defenses to Adultery as grounds for separation?
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1. Recrimination (dirty hands)
2. Condonation (voluntarily cohabit after learning of offense) 3. Connivance (plaintiff tricked spouse into cheating) 4. Waiver - failed to commence action within 5 years of learning of offense |
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Limits on testimony where adultery is alleged?
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D can deny and P can allege, but neither can testify to the fact of adultery, which must come from third party or circumstantial evidence
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What kinds of witnesses require corroboration (apart from parties) in separation case?
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1. prostitutes
2. private investigators |
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What is SOL for the possible grounds for separation?
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1. Adultery: 5 years from discovery of offense
2. Abandonment: considered continuing offense so no SOL 3. all other grounds 5 years from when grounds arose |
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What are possible grounds for a divorce?
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1. cruel and inhuman treatment
2. abandonment for a year or more 3. Adultery 4. Three years Consecutive Imprisonment 5. Conversion Divorce Option - lived separate and apart for one full year pursuant to a valid separation agreement or decree |
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How to dissolve marriage on grounds of absence (Enoch Arden)?
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1. Meet requirements of access to court meaning EITHER:
a. petitioner resides in NY and has resided for one year prior to commencement of proceedings; OR b. NY was matrimonial domicile when spouse disappeared 2. Grounds: a. spouse has been missing, without tidings, for period of 5 years b. spouse is believed dead c. diligent search is made d. publish request for return in English-language newspaper for three consecutive weeks |
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What court has subject matter jurisdiction over matrimonial actions?
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ONLY NY Supreme Court. It may refer other incidental matters to Family Court.
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What is required for jurisdiction regarding status of marriage itself?
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Just that one party is domiciled in New York
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What is required for long-arm jurisdiction over support/alimony claims?
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1. Personal jurisdiction under long arm statute for party to be affected. Sufficient connections are:
a) NY was matrimonial domicile b)D abandoned P in NY c) claim for support etc. accrued under NY law or under agreement executed in NY. |
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What are statutory durational residency requirements that can be imposed in addition to jurisdictional requirements?
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1. If both parties aare NY residents when action commenced and cause of action arose in NY, no need for residency requirement.
2. If one person has lived in NY for ONE YEAR preceding marriage AND: a. marriage was entered into in NY b. parties have resided in NY as husband and wife; or c. the cause of action arose in NY that is enough. 2. Cna be heard in NY after two years continuous residence by one party immediately preceding commencement of action if no other connections |
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What is required for entry of a default judgment or summary judgment?
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1. must be competent written or oral proof.
2. No summary judgment for non-moving party. |
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In a matrimonial action, what are the required documents an attorney must provide to his client?
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1. statement of client rights and responsibilities
2. written retainer 3. closing statement at close of case summarizing and explaining fee |
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May an attorney take a mortgage on a client's home as security for a fee?
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NO!
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What may court consider when determining support at the end of an action?
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1. court may consider ANY relevant factor including fault. Court may adopt terms of separation agreement, but will engage in close scrutiny of agreement to ensure that there was no overreaching
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What is required for modification of a support/alimony award?
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1. Moving party must show a substantial change in circumstances.
2. If award flowed from incorporated separation agreement, must show extreme hardship. |
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When does termination of alimony occur?
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Usually upon death of either party, but can negotiate around this in a separation agreement
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What statute governs property division?
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New York's Equitable Distribution Statute
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What is two-step method for dividing property under Equitable Distribution rules?
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1. divide property into separate and marital property
2. Divvy up marital property through equitable discretion and give each spouse separate property |
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What are the five types of separate property?
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1. anything owned prior to marriage
2. bequests or gifts received by either spouse in sole name 3. property that they agree will be separate property 4. personal injury compensation 5. Passive appreciation on items in first four categories NOTE: where separate property is put into a Totten Trust for benefit of the other spouse, it will nevertheless remain the property of the creator as property in a Totten trust is property of creator until creator dies. |
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What will be considered marital property?
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All property acquired by either spouse during the marriage, regardless of how asset was titled. (includes professional degree)
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What may court properly consider when divvying up property?
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Anything except fault, UNLESS fault was egregious.
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What is label for suit to determine paternity in NY?
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Filiation Proceeding
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Where are Filiation proceedings litigated?
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Family Court
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When must filiation proceeding be brought?
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Any time prior to child's 21st birthday.
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Is artificial insemination considered lawful? Who are the child's parents?
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Yes, it is lawful. Child is considered marital child provided woman is married AND husband consents. Sperm donor is NOT a father.
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Are surrogate parenting contracts legal in NY?
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No. Against public policy.
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Who must consent to an adoption?
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1. If the adoptee is under 18, need consent of both biological parents and anyone else with legal custody
2. If child is over 14, also need consent of the child |
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When is consent for adoption dispensible?
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1. If parent surrenders child
2. If Parent is mentally incapacitated and precludes parent from taking care of child 3. If parent has abandoned child, meaning 6 months without any contact 4. Parent neglected child, meaning either (i) one year with insubstantial contact; or (ii) poses imminent danger to child and falls below minimum degree of care required by a reasonable parent (this standard also applies in termination of parental rights proceedings) |
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What is basic requirement of child support?
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In NY, both parents must support their child through age 21. That requirement can be extended beyond age 21 through the completion of college if there are special circumstances such as academic ability of child.
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What are the conditions of child support?
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Conditional on child's obedience to parents' reasonable demands
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Can a child support order be modified?
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Yes, provided there are changed circumstances.
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When can a non-parent be held liable for child support?
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1. where parent voluntarily gives up child, but prior to that child's adoption
2. estoppel situation |
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What is the standard used in child custody determinations?
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Best interests of the child standard. An agreement by parents in this matter will be given due accord, but is not paramount.
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What is standard used in child custody proceedings between parent and other relatives?
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more than best interests of the child is required here. Must show extraordinary circumstances or unfitness of the parent.
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What are the visitation rights of a parent?
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absent exceptional circumstances, a noncustodial parent should enjoy a natural right of regular and frequent visitation.
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What are the visitation rights for grandparents?
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Grandparents may seek visitation where:
1. child's parents divorce 2. one or both parents die 3. child adopted by another family 4. If both parents object, must show sufficient existing relationship with child or effort to establish one. (note, this standard may be unconstitutional as parent's determination regarding whether grandparents should visit must be given "special weight." Judge cannot override this just because judge thinks better decision could be made. |
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What is required for a court to approve relocation of a parent?
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preponderance of evidence that relocation is in the best interests of the child
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How may an ex parte divorce be collaterally attacked?
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by showing P was not domiciled in divorcing state at time divorce occurred. May show facts occurring after the divorce.
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If bilateral divorce, is property division res judicata?
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YES
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What is the Uniform Interstate Family Support Act
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provides methods for enforcement and guidelines for modification of support orders issued in another state. Limits jurisdiction to modify to original forum state to prevent forum shopping.
1. income withholding letter can be sent directly to obligor's out-of-state employer or to support enforcement agency there. 2. Nonissuing court cannot modify unless parties no longer reside in that state or they consent to jurisdiction of non-issuing court on the record |
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Full Faith and Credit for Child Support Orders Act
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requires each state to enforce child support orders of sister states and prohibits modification of such orders by a foreign court unless state seeking to modify has jurisdiction and original state no longer has exclusive, continuing jurisdiction.
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Uniform Child Custody Jurisdiction and Enforcement Act
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avoids jurisdictional disputes with courts of other states in matters of child custody and facilitates interstate enforcement.
1. all states should defer to original state forum adjudicating custody over child (original state has exclusive jurisdiction) 2. Initial test for jurisdiction is child's home state. Does not apply if no other state claims home state jurisdiction or accepts it and (i) child and at least one parent have connection to state and (ii)substantial evidence concerning child is available in state. |
