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30 Cards in this Set
- Front
- Back
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How can you attack validity of pre-nup?
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Formalities (writing, signed, acknowledged)
Duress Not fair and reasonable at time it was MADE, and not unsconscionable at time of DIVORCE |
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How do you establish paternity at filiation proceeding?
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Clear and convincing evidence
Blood tests: presumption that D is father if 95% probability, and D must rebut by showing he's infertile or had no contact with mom during time of conception |
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Estoppel in filiation proceeding
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If non-father mistakenly represented himself as father and child relied, father stopped from denying status as parent
If mom lives with non-biological father and lists that person as father on birth certificate, both parents are estopped from denying father's status |
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Requirements for marriage
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License (capacity) and ceremony (officiant, witnesses, exchange of promises)
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Is there common law marriage in NY?
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No
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Matrimonial causes of action
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Declaration of nullity, annulment, suit seeking legal separation, divorce, dissolution
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Grounds for declaration of nullity
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bigamy, incest
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Grounds for annulment
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Non-age, mental incapacity at time of marriage (capacity = sound mind), duress, fraud, physical incapacity, 5 years incurable insanity
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When fraud can bs used as ground for annulment
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Misrepresentation or concealment of info prior to marrriage that goes to ESSENTIAL ASPECT of marriage and is CALCULATED to deceive a reasonable person
Religion: yes Procreation: yes Pregnancy w/someone else's child: yes Sex (previously a prostitute): yes Lies about money or property: NO |
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Requirements for physical incapacity used to get annulment
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Inurable; no jury trial; brought w/in 5 years of marriage
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Is there a jury trial at a suit seeking legal separation?
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No
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Grounds for legal separation
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Cruel and inhuman treatment, abandonment (voluntary, without justification, no intent to return - but NO TIME LIMIT), adultery, 3 years imprisonment, failure to provide economic support
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Definition of adultery
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Act of sex or deviant sex voluntarily performed with person who is not your spouse
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Defenses to adultery
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Recrimination, condonation, connivance, S/L (5 years from discovery of adultery)
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Evidence of adultery
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Proof of adulterous act cannot come solely from plaintiff spouse
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Requirements for no fault divorce
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One party swears under oath that marriage has been irretrievably broken for at least 6 months
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Requirements for dissolution divorce
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P has not received "tidings" for at least 5 years, P shows evidence of "diligent search," P publishe request for return in English-lanuage newspaper for three consecutive weeks, and P has lived in NY for 1 year or NY was matrimonial domicile at time of disappearance
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Can fault be used as factor in maintenance judgment?
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Yes
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When is modification of maintenance award allowed?
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When there's a substantial change in circumstances
But if separation agt, party must show extreme hardship Only prospective modifications allowed |
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When does maintenance award terminate?
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Automatically on death of either party or remarriage, unless modified by agt
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Grounds for termination of parental rights
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Abandonment, permanent neglect (at least 1 year), abuse, mental illness or other disability that makes it impossible for parent to care, murder of child's sibling by parent
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When do you need consent from adoptee to adopt?
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When child is over 14
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At what age do parents' support obligations for child end?
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21, can be extended through college if (i) academic ability and (ii) financial ability by parents
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Is visitation dependant on child support payments?
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No
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What standard governs non-parents request of visitation over objection of parent?
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BIC governs, non-parent must show special circumstances and establish a SUBSTANTIAL STATE INTEREST in allowing visitation over parent's objection. Parents have DP right to raise their children as they see fit.
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What marriages are valid in NY?
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All marriage valid where performed
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Under what statute does NY enforce out-of-state child support obligations?
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Uniform Support Law - out-of-state order given full faith and credit so long as one parent or child continues to live in state that issued the order
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Under what statute does NY enforce out-of-state custody orders?
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Uniform Custody Law - out-of-state order given full faith and credit so long as one parent or child continues to live in state that issued the order
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Are non-refundable retainer agts allowed in DR matters?
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No
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Requirements for retainer agt for DR matter
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In writing, attorney gives client statement of rights and responsibilities
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