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31 Cards in this Set
- Front
- Back
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What's the prohibition on unmarried co-habitation agreement consideration?"
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Must be for something other than sex
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Prenuptual agreement Requirements
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(1) in writing and signed (statute of frauds);
(2) Freely made (no fraud or duress); (3) Not unconsionable (only if lack of support = public charge); (4) Cannot preagree on a divorce or conduct giving rise to a divorce |
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SoL for Pre-nup
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2 years for fraud (from discovery)
3 years for other grounds (tolled until matrimonial action commences) |
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For filiation proceeding in family court, does women's claim of paternity need corroboration?
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No
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For filiation proceeding, does man's claim of woman's sex with others need corroboration?
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Yes
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Up to what age can you have a filiation proceeding in family court?
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Before kid turns 21
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Circumstantial evidence for filiation proceeding
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(1) mom says guy is father;
(2) man says other people had sex with her; (3) conduct of "parent"; (4) do they look alike? |
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Effect of DNA test on filiation proceeding
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Conclusive only if it shows he's not the father
If > 95% probability of match, creates presumption and shifts burden of proof to the "father" |
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Marriage requirement
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(1) License;
(2) Ceremony (3) solemn declaration; (4) 2 witnesses; (5) officiant (anyone who looks important) |
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What is the name of the action you seek for court to say marriage was void to begin with?
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Seek a Declaration of Nullity
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Grounds for separation
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(1) Abandonment;
(2) Cruel and Inhumane Treatment; (3) In Jail for 3 Years; (4) Adultery; (5) Lack of support |
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Do grounds for annulment need corroboration?
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Always
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Grounds for an annulment
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(1) Infancy;
(2) 5 years of incurable insanity arising after the marriage; (3) Fraud; (4) Duress; (5) Incapacity at time of marriage; (6) Incurable physical incapacity |
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Is infancy an automatic ground for annulment?
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No, court has discretion to deny the annulment
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What do you need to prove 5 years of incurable mental incapacity arising after marriage?
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3 doctors have to agree
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What must fraud for annulment consist of?
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Something that's an ESSENTIAL ASPECT OF THE MARRIAGE that was calculated to deceive a reasonably PRUDENT PERSON.
SOL = 3 years from revelation |
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Test for cruel and inhumane treatment
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Is it unsafe or improper for the P to continue to co-habit with the defendant. SUBJECTIVE TEST.
5 year SOL. |
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Test for Abandonment
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(1) Voluntary departure;
(2) Without justification; (3) Without consent; (4) without intent to return |
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Adultery definition
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Sex or deviant sex performed with another PERSON who is not your spouse during the marriage
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SoL for adultery
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5 years
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Can parties testify to prove adultery?
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Never. Must come from evidence.
Circumstantial = (a) opportunity + (b) disposition |
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Requirement for Separation Agreement
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(1) writing;
(2) Freely made w/o undue influence or duress; (3) Acknowledged; (4) Doesn't violate public policy (e.g., alter or dissolve support obligation); (5)Parties must separate immediately after Will be dissolved if parties co-habit with intent to reconcile |
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Requirement for Conversion Divorce
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(1) separation agreement or decree;
(2) if agreement, filed with court; (3) lived separated and apart for 1 year |
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Dissolution Action
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(1) missing for 5 years
(2) presumed dead; (3) made diligent effort to find him; (4) publish request for him to return for 3 consecutive weeks in an English newspaper; (5) must have either lived in NY for 1 year OR couple must've been domiciled in NY at the time of the disappearance |
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Can fault be considered in maintenance or equitable distribution
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Maintenance, yes. Equitable distribution, NO.
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Modification of Court-Ordered Maintenance
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substantial change in circumstances
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Modification of Separation Agreement Maintenance
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Extreme change in hardship
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SoL for maintenance arrears
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20 years
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do you need consent of kid to be adopted?
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Only if he's 14+
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Grounds for judicial severance of parental rights
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(1) Mental incapacity making it impossible to care for child;
(2) Abandonment = 6 months without any contact; (3) Neglect = 1 year with substantial contact; (4) Abuse |
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When does a state have the power to enter a child custody order?
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If it's the child's HOME STATE = lived there with a parent continuously for 6 months prior to custody proceeding.
Can also enter order if state was home state of child within the past 6 months AND a parent still lives there |
