Ny Bar 2007 Domestic Relations

Front 1

Contracts between Unmarried Couples

Back 1

NY enforces express contracts between unmarried cohabitants except contracts where the consideration for an economic payment is sex.
NY will NOT enforce implied contracts between umarried couples.

Front 2

Antenuptial Agreements

Back 2

An express contract in contemplation of marriage which can address any issue, typically economic issues such as property allocations and wills. Child custody and support are subject to judicia scrutiny.

Front 3

Requirements for Valid Formation of Antenuptial Agreements

Back 3

1. Freely made without duress.
2. In a writing, signed and acknowledged.
3. May not pre-agree on divorce or to engage in conduct that would be grounds for divorce.
4. May not be unconscionable. Waiver of all alimony is not necessarily unconscionable unless it would leave the waiving spouse a public charge.
5. Validity is contingent on subsequent marriage.

Front 4

Non-marital Children

Back 4

Non-marital children are children conceived by or born to parents who never marry and are entitled to treatment equal to marital children.

Front 5

Filiation Proceeding

Back 5

A proceeding to determine paternity for child support.
Family court has exclusive jurisdiction.
May be commenced by mother or father any time before child's 21st birthday.
Must be established by clear and convincing evidence.
Mother's allegation of paternity need not be corroborated.
Father's claim of mother's sex with other men must be corroborated.
DNA evidence showing a >95% probability of paternity shifts the burden of proof to defendant to negate paternity.

Front 6

Marriage in General

Back 6

A contract between the husband, the wife and the state.
Must have capacity (age, sanity) to enter into marriage.
Same sex marriage not recognized in NY.

Front 7

Ceremonial Marriage Requirements

Back 7

1. License issued by the city clerk which expires in 60 days.
2. Waiting period of 24 hours after issuance of license.
3. Defects in license or failure to procure does not void underlying marriage.
4. Ceremony: a solemn declaration that the couple will take on the status of husband and wife before an officiant and a witness.

Front 8

Contractual Marriage Requirements

Back 8

1. License not required.
2. Written contract.
3. Signed by the parties before a judge and at least one witness.
4. Parties may be physically separate and does not have to be signed contemporaneously).

Front 9

Marriage at Sea

Back 9

Recognized by NY if valid under the laws of the shipowner's jurisdiction.

Front 10

Common Law Marriage

Back 10

NY does not recognize.
NY will recognize common law marriages valid in other states.

Front 11

Pre-marriage Gifts in Contemplation of Marriage

Back 11

Donor can usually recover the gift if marriag does not take place.

Front 12

Abolished Actions ("Heart Balm" Statutes)

Back 12

It is a felony in NY to file a heart balm complaint such as:
1. Breach of promise to marry;
2. Seduction of an unmarried female;
3. Alienation of affections;
4. Criminal conversation (adultery);
5. Jactication of marriage (holding out married when truly not married).

Front 13

Obligations and Duties of Marriage

Back 13

1. Duty of sexual exclusivity.
2. Obligation to economically support each other based on the means of the wealthier spouse (means test) or enough financial support to avoid becoming a public charge (needs test).
3. Spouses maintain seperate identities for property ownership; domicile; surnames; torts and crimes; contracts.
4. Spouses liable for debts of other spouse for necessaries.
5. Spouses are liable for actions taken by the other spouse as an agent.

Front 14

Declaration of Nullity

Back 14

Where one party lacked capacity to marry and the incapacity is so severe that the law will classify th3e marriage as void. Bigamy and incest (blood ancestors, descendants, siblings and lineal relatives up or down 1 generation) rise to that level of severity.

Front 15

Annulment in General

Back 15

A capacity problem, less severe than bigamy or incest, which existed at time of marriage and renders the marriage voidable.

Front 16

Annulment Due to Age

Back 16

Under 14, marriage is voidable.
14-15 requires consent of a parent and a judge.
16-17: requires parental consent.
18+: no problem.
Waiver: if couple remains married past 18th birthday.

Front 17

Annulment Due to Mental Incapacity

Back 17

If at the time of the marriage a party has the inability to consent due to want of understanding, the marriage is voidable.
Waiver: waivable if the party overcomes the incapacity.

Front 18

Annulment Due to Duress

Back 18

If marriage is entered into under duress (physical threat) it is voidable.
Waiver: freely cohabitating after threat is removed waives.

Front 19

Annulment Due to Fraud

Back 19

If a party misrepresents or conceals informaiton that goes to an essential aspect of the marriage prior tot hte date of the marriage which would have deceived a reasonably prudent person, the marriage is voidable.
Misrepresentations concerning religion (denomination, level of devotion, willingness to convert or upbringing of children).
Misrepresentations Concerning Sex (ablity to procreate, paternity of expected child, willingness, past sexual history, agenda or expectations).
Misrepresentations concerning financial assets are not grounds for annulment.
Waiver: cohabitation after knowledge or action not brought within 3 years.

Front 20

Annulment Due to Incurable Physical Incapacity

Back 20

A party's incurable physical condition that prevents safe sexual intercourse without party's prior knowledge makes marriage voidable.
Action within 5 years of marriage.
Trial is without jury.

Front 21

Annulment Due to 5 Years Incurable Insanity After Marriage

Back 21

If a spouse develops incurable mental illness after marriage that lasts for 5 years, marriage is voidable.
Requires 3 court-appointed physicians to diagnose.

Front 22

Annulment Procedural Issues

Back 22

Corroboration required for testimony of each spouse.
Jury trial except physical incapacity.
6 Year Statute of Limitations unless otherwise specified.

Front 23

Legal Separation Defined

Back 23

A court granted permission to live seperately that does not terminate the marriage.

Front 24

Grounds for Legal Separation

Back 24

1. Cruel and Inhuman Treatment;
2. Abandonment;
3. Adultery;
4. Imprisonment for 3 consecutive years;
5. Failure to provide economic support.

Front 25

Cruel and Inhuman Treatment

Back 25

A grounds for separation or divorce.
Physical or mental abuse that endangers the well-being of the spouse and results in harmful consequences.
Pattern of abuse: cohabitation after bad treatment does not necessarily waive.

Front 26

Abandonment

Back 26

Grounds for legal separation or divorce requiring: voluntary, non-consensual, unjustified departure with no intent to return.
Divorce requires abandonment for at least 1 year.

Front 27

Constructive Abandonment

Back 27

Grounds for legal separation or divorce.
Physically leaving cohabitation is not necessary.
Refusal to engage in marriage intimacy (at all) or locking the spouse out of the dwelling.

Front 28

Adultery

Back 28

Grounds for legal separation or divorce.
An act of sex or deviant sex voluntarily performed with another person who is not your spouse while married.
A victim of rape is not adulterous.

Front 29

Defenses to Adultery

Back 29

Recrimination: the plaintiff spouse has also committed adultery.
Condonation: cohabitation after knowledge of adultery acts as forgiveness.
Connivance: a form of entrapment where the spouse suing for divorce tricked the other spouse into adultery.
5 year statute of limitations.

Front 30

Procedural Aspects of Adultery

Back 30

Proof of adultery must come from circumstantial evidence or 3rd party testimony showing that D had the opportunity and the disposition.
Corroboration required for testimony of detectives and prostitutes.

Front 31

No Fault Divorce

Back 31

NY does not have no fault divorce.

Front 32

Conversion Divorce

Back 32

1. Couple separates legally or via private separation agreement, freely made in writing, acknowledged and filed with the court.
2. Couple lives separately for 1 full year.
3. Separation converts to divorce.
Note:
Cohabitation with intent to reconcile rescinds the separation agreement and resets the clock.
Isolated cohabitation without intent to reconcile does not rescind the agreement.
Cohabitation under court decree of separation has no consequences.

Front 33

Dissolution of Marriage

Back 33

Proceeding used when a spouse disappears requiring:
1. proof that spouse has been missing without any tidings for a period of 5 years.
2. A diligent search including publishing a request for the spouse to return in a english language newspaper for 3 weeks.
3. Residency in NY for one year or NY as the matrimonial domicile at the time of disappearance.

Front 34

Subject Matter Jurisdiction for Divorce (Durational Residency Requirements)

Back 34

In order to bring an action in a NY court there must be subject matter jurisdiction over the marriage. This is attained by
1) either spouse has been a NY resident for 2 years immediately preceeding the cause of action or
2) either spouse has been a NY resident for 1 year immediately preceeding the cause of action and i) the cause of action arose in NY or ii) the parties resided in NY as husband and wife or iii) the parties were married in NY or
3) both spouses were domiciliaries of NY when the cause of action arose.

Front 35

Personal Jurisdiction Requirements fr NY Court to Affect the Marital Estate

Back 35

In order for a NY court to affect the marital estate (equitable distribution, maintenance or child support) there must be personal jurisdiction over the non-resident defendant. This occurs when NY is either
1) the last marital domicile,
2) the cause of action stems from a NY separation agreement or decree, or
3) the abandonment took place in NY.

Front 36

Temporary Maintenance (Alimony)

Back 36

Court may award temporary maintenance during proceedings to meet ongoing needs of either party.

Front 37

Maintenance (Alimony)

Back 37

Permanent alimony is determined based on any factor the court deems relevant, including:
1) Fault and degree of fault
2) Age, health, job skills and earning capacities
3) Custody of children
4) Need to attain job skills
5) Duration of marriage

Separation agreement may determine amount but it is subject to close srutiny to prevent overreaching.

Front 38

Modification of Maintenance (Alimony)

Back 38

Modification of court determined maintenance is available upon a showing of a substantial change in circumstances of either party.
Modification of maintenance under a separation agreement is available only upon a showing of extreme hardship.
Modifications do not effect payments in arrears.

Front 39

Termination of Maintenance (Alimony)

Back 39

Termination may be specified in separation decree otherwise it is assumed to continue indefinitely.
Unless otherwise agreed, maintenance terminates upon the death of either party or the remarriage of the receiving spoues.

Front 40

Equitable Distribution (property division)

Back 40

NY considers marriage an economic partnership dividing the estate equitably and fairly, not necessarily equally. NY looks at numerous factors: age, health, current income, earning potential, duration of the marriage, tax consequences, fault (only in the most serious of cases), and most importantly separate property holdings.
Marital property is all property obtained from the commencement of the marriage to the commecement of the matrimonial action. Separate property is property maintained separate during the marriage, property purchased with separate property, gifts, bequests, inheritances and personal injury awards.

Front 41

Appreciation of Separate Assets in Equitable Distribution

Back 41

If separate assets appreciate due to the non-holding spouses efforts, then the appreciation is a marital asset, but if it is passive appreciation, it remains separate property.

Front 42

Valuation of Professional Licenses in Equitable Distribution

Back 42

NY gives credence to the direct aqnd indirect contribution of a stay at home spouse to the other spouse's professional success. Therefore, licenses, degrees and pension plans obtained during the marriage are marital property.

Front 43

Child Support in General

Back 43

Both biological parents have a duty to support children through the age of 21. This may be extended through the completion of college if the child has academic ability and the parent has the economic ability.

Front 44

Child Support under the Uniform Child Support Standards Act

Back 44

NY has adopted the Uniform Child Support Standards Act. It is an awards system to avoid arbirary child support awards.
It is based on the combined income of the spouses up to $80K from which a percentage is taken based on the number of cildren to be supported: 17% for 1 child; 25% for 2 children; and 29% for 3. The judge can opt out if the amount is unjus or inappropriate for the child. The parents may opt out but must stipulate as to why. Child care, health care and education expenses are paid proportionally to the parents income in addition to the calculated child support.

Front 45

Modification of Child Support

Back 45

To modify child support requires a substantial change in circumstances based on the child's needs or the parent's ability to support. NY will never cancel or reduce child support in arrears.

Front 46

Child Custody

Back 46

Legal custody gives the parent decision-making authority.
Physical custody is where the child lives.
Any issue related to the child is determined under the best interesr of the child standard.
In order for a non-parent to gain custody they must go beyond the best interest of the child standard and show extraordinary circumstances or the unfitness of the biological parent.

Front 47

Visitation

Back 47

Granted to the non-custodial parent.
Non-parents must overcome the presumption that a fit parent's decisions are in teh best interests of the child. Non-parents must establish standing, for example, the real parents have passed or circumstances make it appropriate for equity to inervene.

Front 48

Modification of Child Custody

Back 48

Custody is reassessed under the best interests of the child standard. Courts look to the stability of having the child stay in the home.

Front 49

Validity of non-New York Marriages and Divorces

Back 49

A marriage valid where contracted is valid in NY.
An out-of-state bi-lateral divorce is prima facie valid in NY provided defendantreceived service of process (can be collaterally attacked by showing the forum was not the domicile of the spouse attaining the divorce.
Foreign divorces valid under the doctrine of comity.
Ex-parte foreign divorce is not valid in NY.

Front 50

Uniform Interstate Family Support Act

Back 50

The original forum state has continuing and exclusive jurisdiction. This prevents forum shopping.

Front 51

Uniform Child Custody Jurisdiciton and Enforcement Act

Back 51

All states must defer to the original custody order entered by the forum state which has continuing and exclusive jurisdiction.