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88 Cards in this Set
- Front
- Back
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i. Can they enter into an enforceable contract or a document which binds them to a post relationship arrangement for payments?
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YES-Now these K’s are enforceable provided
BUT-Consideration is NOT sex bc prostitution is illegal AND-Will not imply a K btw them: no palimony in NY |
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If a spouse wants to rescind a prenuptial agreement, what must they prove in order to do it? (4)
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4 elements (K analysis)
1. No duress—Agreement must have been freely made 2. MUST be in writing (SOF applies), signed by BOTH parties AND acknowledged 3. Cannot agree to a divorce or commit acts that would lead to a divorce 4. Cannot be unconscionable: Case by case determination, “shocks the conscience” outrageous |
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What type of behavior will automatically be considered unconscionable under a pre-nup?
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bright line test – if economically weaker spouse would become a public charge, likely the agreement is unconscionable
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What is a action for filiation?
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An action by a NMC's mother to invoke paternity against putatuve father OR brought by father to establish paternity
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by when must a filiation suit be brought to be valied?
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by the time the NMC is 21
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What is the standard of proof in a filiation suit?
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Clear and convincing evidence
-Mother’s claim of sexual access by the D (father) need not be corroborated -If D offers evidence that Mom had sex w/ other men, testimony MUST be corroborated |
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what other evidence may be introduced to establish filiation?
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Other aspects of the relationship with the alleged father were often relied on: eg called him dad, he paid for stuff, he behaved as dad;
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What has simplified filiation actions?
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Cases are mechanical now bc of DNA
-Creates a presumption and shifts burden to D (father) |
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If a man mistakenly care for a child he believes is his own, and learns of mistake and ends support, what action?
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Under Equitable estoppel:
i. A man who has mistakenly acted as father to the child and provided support to child but who is determined not to be the father is ESTOPPED from leaving ii. The dad cannot leave b/c the kid relied on him as dad |
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Why litigate a filiation proceeding?
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Child support obligations
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if the two break up, who keeps the ring?
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He does. If gift given in contemplation of marriage then can get the gift back
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list 5 “Heart Balm” actions.
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1. Breach of promise to marry
2. Seduction of an unmarried female a. Person who has coa, female’s father 3. Alienation of affection a. Brought against a 3d person who turns one spouse against the other (in-laws) 4. Criminal conversation – adultery a. Neither criminal nor a conversation b. Tort for having sex w/spouse 5. Jactitation of marriage a. Running around claiming to be married to someone that you are not b. Other “suitors” would not approach woman |
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What do you need in order to get married?
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Need capacity
a. Marriage is a K, husband, wife and state b. Need all of the capacities that you need to engage in K law i. Sound mind ii. Suitable age—minors can’t K |
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When do most capacity issues actually arise?
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Most capacity problems that cause people to be denied a license for marriage usu come up during annulment
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Can 2 people of same sex marry in NY?
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NO but they can marry in another JD and NY will honor the marriage
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What do you need to get married in NY? (2)
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License and ceremony
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From when to when is the license valid?
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From the end of the 24 hour waiting period before you can get married (not NV)
until License expires in 60 days |
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What are the elements of marriage ceremony? (3)
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1. promise/solemn declaration
2. officiant 3. 2 witnesses |
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Contractual marriage?
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Allows for 2 people to marry when they are in separate places
-Each goes in front of a judge and signs K -Need 2 witness at each location |
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Does NY recognize common law marriage?
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NO--Except if CL marriage in another state and relocate to NY, then will be recognized
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5 different coa’s that can be brought to terminate a marriage
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a. Declaration of nullity
b. Annulment c. Legal separation e. Divorce f. Dissolution action |
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What is the proper coa that one party lacked legal capacity which makes the marriage void?
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Declaration of nullity
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2 examples of Declaration of nullity?
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1. Bigamy – already married cannot marry others
2. Incest – cannot be a close relative of perspective spouse |
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In a void relation technically do you need to go to ct?
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NO--Allow it for clarity of the record and if had a child and now needs to establish custody
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What is the proper coa that one party lacked legal capacity which makes the marriage voidable?
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Annulment--Capacity problem, makes marriage voidable (but not void like declaration of nullity)
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What are the Grounds for annulment? (6)
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a. Married before 18, lack capacity
b. Mental incapacity at the time of marriage, capacity problem c. 5 yrs incurable insanity after marriages d. Duress e. Fraud (might have to issue spot here) f. Physical incapacity |
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In order to claim lack of capacity due to age, how young does the P need to be?
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i. Annulment not automatic, have to bring a coa and ct has discretion
ii. 16 or 17, can get married w/ consent of parents iii. 14 or 15, can get married w/ consent of parents and a judge |
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Is waiver a defense to an annulment action?
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YES--Remaining in marriage voids ability to leave; SOL is 6 yrs, except physical incapacity, can get a waiver long before this time
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If D sufferes from 5 yrs incurable insanity after marriages, what CoA does P have?
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Annulment
i. Both parties sane at time of marriage but one becomes insane ii. Need medical testimony of 3 court-appointed physicians must testify iii. Cannot be waived, a continuing condition |
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Duress--Common example?
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Shotgun Wedding
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What type of Fraud rises to level necessary to warrant annullment?
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Prior to marriage, one party misrepresents or conceals info that goes to an essential aspect of the marriage and is calculated to deceive a RPP (intentional and material), deceived party has grounds for annulment: like RELIGION or SEX CAPACITY
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Two common examples of fraud which will warrant annulment and 1 whill will NOT.
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1. Fraud and religion
2. Any fraud relating to procreation or sex – goes to essential aspect NOT grounds--Lying about money, job, position, real estate holdings |
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What type of argument will P rely on when making a Fraud and religion case?
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Religious compatibility goes to heart of marriage
Lie about intent to raise children under a certain religion (but distinguish between a lie and a change of mind – had to not mean it in the first place |
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Which of the 6 grounds for anullment does not permit a jury trial?
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Incurable physical incapacity
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Why do we prohibit jury trials for able physical incapacity cases?
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Its embarrasing for the D Incurable physical condition – impossible to have safe, normal intercourse
Has nothing to do w/ one’s ability to procreate -MUST be incurable -Have to bring this in 5 yrs |
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What are 5 grounds for Legal separation?
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(1) Cruel and inhuman treatment
(2) Abandonment (3) Adultery (4) 3 yrs of consecutive imprisonment (5) Failure to support (economic) |
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If P pleads Cruel and inhuman treatment in seeking separation, can D argue P waives by staying around?
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NO--continued cohabitation can be argued as a factor in defense, but it is not a waiver – be very cautious about finding it to be a waiver
Remember-Subjective determination – based on how this particular P is affected |
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4 Requirements under Abandonment (no SOL) CoA for separation?
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1. A voluntary departure by one spouse, physical or constructive AND
2. w/o consent of other spouse AND 3. w/o justification AND Leaving b/c of abuse is always justified 4. Evidence of no intent to return (usually inferred from length of time) |
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Describe Constructive abandonment.
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Refusal to have sex, sleeps in the guest room – if done w/out consent or justification & no intent to return, proper ground
Refusal to engage in unconventional sex practices is not abandonment |
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4 Defenses to Adultery.
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1. Recrimination – “dirty hands,” – same as unclean hands in equity
-P has to be free from misconduct – you can’t be a cheater too 2. Condonation – waiver -Evidence that P spouse learned of adultery then resumed cohabitation 3. Connivance -P spouse shown to have deliberately induced D to commit adultery 4. SOL – 5 years from discovery of adultery |
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Who can testify to prove adultery?
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3rd parties--Never the spouses
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What 2 types of circumstantial evidence will support a case for adultery?
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1. Opportunity PLUS (on a business trip w/female coworker)
2. Disposition (indication of affection - love notes, gifts) |
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Grounds for divorce? (4)
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Same as first 4 for separation:
1. Cruel and inhuman treatment 2. Abandonment – absence has to be for 1 year 3. Adultery 4. 3 yrs consecutive imprisonment |
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Under the Conversion Divorce, what is required to initiate the process?
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Voluntary Separation agreement
• Has to be in writing AND • Freely made (no duress or undue influence) AND • MUST be acknowledged AND • MUST file w/ ct prior to obtaining conversion divorce |
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Can the Voluntary Separation agreement be rescinded?
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YES-Can be rescinded by the acts of the parties and then no divorce
•Rescission: sex during separation and intent to reconcile •Casual or physically motivated sex not rescission |
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What is NEXT needed for conversion to divorce from sepration?
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Then must live apart for 1 year & can “convert” separation into divorce
-no sex/cohabitation during separation period but still married so can’t sleep with other people either |
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Requirements for a Dissolution action? (4)
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Brought only when spouse has disappeared
• Evidence that spouse has been missing w/out tidings for a period of 5 yrs • Testify that there was a diligent search • Have to publish a request that spouse return in an English language newspaper • P must to have lived in NY for 1 yr at time of disappearance or couple was domiciled in NY at time of disappearance |
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Where are marriage dissolution actions brought?
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NY Supreme Court
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What is necessary to satisfy SMJ ?
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Need one spouse domiciled in NY
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If residency requirements are not satisfied, what can be done?
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3 alternative ways to satisfy residency:
1. If both parties reside in NY and grounds occurred in NY, no minimum residency required – immediate action in ct 2. Only one party lives in NY (residency 1 yr) AND -Got married in NY OR -Ever lived in NY as spouses OR -Grounds occurred in NY 3. If only one party lives in NY and NO other factors – 2 yr residency requirement |
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If collateral issues over D, like Property, or alimony what result?
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Need PJ over the D to bring them into NY court.
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What degree of specificity is required in pleadings for marriage dissolution?
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All Pleadings MUST be verified except in cases alleging adultery
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What are the Commonly used factors (common sense factors – very open-ended) for determining maintenance?
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• Health and age of the parties
• Earning capacities • Who is custodian of minor children • Inability to work full time in young children • Greater need for economic support • Duration of marriage and standard of living • Marital misconduct/fault |
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Once a court establishes post marital maintenance, can the terms of the arrangment be modified?
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YES--by Modification
• Can get by application to ct and showing of substantial change in circumstances -ex: payor has been fired or laid off • If maintenance being paid out under separation agreement, MUST show extreme hardship before ct will relieve from the K • Prospective only – can’t modify past due payments |
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2 ways in which post marital maintenance ends?
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• Death of either party will always terminate - but Separation agreement can contract around this
• Ends if recipient remarries or cohabits w/ another as if they were spouses |
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3 methods of Enforcement of post marital maintenance?
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• seize assets – apply to court for order
• attach wages – instruct employer to withhold & remit to other spouse per order • take way driver’s license, professional license or recreational license |
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How is property distributed post-marriage?
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NY is an equitable distribution state – code is EDL; under EDL do 2-step analysis:
1. 1st go through all the assets & liabilities the couple owns and divide into 3 piles 2. 2nd Divide and distribute w/equitable factors for marital assets |
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What are the 3 categories into which marital assets are divided for distribution?
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(a) Husband’s separate property
(b) Wife’s separate property (c) Marital assets |
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5 types of Separate property assets?
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• Anything owned by spouse prior to marriage
• Any gift or inheritance received after marriage in your sole name • Property that spouses agree to treat as separate property IS separate property • Personal injury compensation • ***Passive appreciation of the above 4 - but appreciation due to work & active labor during the marriage is a marital asset |
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how is the property that is not in the husbands or wife's pile get treated?
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marital
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Distinguish between active and passive appreciation?
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Active appreciation of an asset during the marriage creates value for the marriage, NOT the individual
Passive appreciation remains with the individual |
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how are professional licences/degrees treated?
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if earned during the marriage, they are marital assets;
they do not get merged into value of practice |
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How do the assets then get distributed?
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• H gets his property, W gets hers & marital assets divided equitably
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How do debts gets distributed?
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pre-marriage debts stay with party, post marriage debts go to marital assets,
Exception: previous alimony will not be recompensed to current spouse |
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How will the court deal with illiquid assets?
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Ct can order transfer in kind or distributive award (lump sum)
OR order to Deed over to W certain marital assets titled solely in H’s name –or- |
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Who can adopt?
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• Married couples as co-petitioners
• Single person in NY can adopt, as can married but separated adult w/out other spouse as co-petitioner • married minor can petition to adopt his spouse’s kids |
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Who can be adopted?
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• Anyone, provided obtain all necessary consents and establish a parent/child relationship & the purpose is to establish a bona fide parent-child relationship
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Whose Consent is needed for an adoption?
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• Minor child being adopted – need consent of both biological parents
• If adoptee over age 14 – need consent of parents and adoptee • If any other party has legal custody, that person would have to consent |
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When do parents waive the right to veto the adoption? 4 situations
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• If parent has surrendered the child – putting child up for adoption
• If mentally incapacitated and unable to care for the child • If abandoned child – no contact for 6 months or longer • If parent is guilty of neglect – one year or more without substantial contact -no payment or support |
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Does the state investigate prospective adoptive parents?
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YES--MUST:
• Fill out paper work and investigate the home • Attempt to engage in religious matching • Temporary trial period for 3 months then hearing for final adoption |
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What are the gournds for termination of parental rights? (4)
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4 grounds:
(a) abandonment (b) neglect (c) mental incapacity (d) abuse |
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Until when must a parent support a child?
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Child support required from both biological parents through age 21
-In NY, can be extended if child attending college and parents have financial resources to support & child has necessary academic ability -A child who lives with the parent,is given support through necessities: Food, shelter, medical care Parent not living w/ child held liable for that support Step parent – in NY, step parent has a duty to support the child when child relies on that step parent |
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Can Child Supprot be modified?
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YES- can be modified as to change of circumstance and party must petition
• If an upward increase in income, child support will be increased as well |
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Can Child support be Terminated?
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YES but only when child reaches age of majority or someone dies
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How is child support enforced against “deadbeat” parents?
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• Attach property and sell
• Wage reduction order, take money from paycheck • Hold in contempt of ct • Intercept fed tax return money • Must have direct jurisdiction so if parent moves out of state this is an issue |
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How does Ct resolve a custody dispute?
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Ct resolves by application of the “best interest of the child” standard: BIC
NOTE: no preference given based on gender |
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List some items from the open-ended list of factors for court to consider in applying the BIC:
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Look at what the parents want (maybe one parent doesn’t want the child)
If child over age 12, consider child’s wishes Look at age and heath of all parties Was one parent always the primary care giver Domestic violence by any party Does either parent have a new companion Look to extended family if joint custody is a possibility, look at whether parents get along & live in close proximity to one another |
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Will the judge ever speak directly to the child in applying the BIC test?
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YES, in chambers--must have a record.
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When will a Non-custodial parent have visitation denied?
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Only denied if proposes a direct threat
Even then, court will sometimes order supervised visitation Never contingent on paying child support If custodial parent interferes then can be held in contempt |
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What test is applied for Custody contest btw parent and non-parent?
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Still litigate under BIC standard
• Presumptions that BIC is being left with parent • Non-parent MUST show extraordinary circumstances or parental unfitness |
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What if the custodial parent wants to relocate?
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MUST get court permission first – show it’s BIC
court considers – harder for other parent to visit the child |
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Will grandparent automatically be given right to visit?
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NO if parents object, Parents have a due process right to make decisions as to how children should be raised
NY ct held that special weight be given to the parent and grandparents must show special circumstances to get visitation over parents’ objection |
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Are out of state marriages upheld in NY?
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YES-Valid where contracted is valid in NY
Narrow exception if marriage violates a strong public policy of the state |
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ARE Out of state divorce upheld in NY?
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YES – if divorce performed in another jurisdiction and both parties participate, NY will hold valid – res judicata as to all issues, can’t now attack it
-Ex parte divorce in another state is prima facie valid in NY but it can be collaterally attacked by proving that spouse who procured it was not domiciled in forum state |
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ARE Out of country divorce upheld in NY?
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YES-normally given acknowledgment under comity, provided both spouses participated and was legal where obtained
Ex parte out of country divorce NOT recognized in NY |
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What do the Uniform Interstate Family Support Act (UIFSA) and the Full Faith & Credit for Child Support Orders Act do?
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Prevents inconsistent orders by providing for interstate direct enforcement:
-If first state had proper jurisdiction, will have continuing jurisdiction -If NY was where the divorce granted then NY will have continuing jurisdiction |
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What does the Uniform Child Custody Jurisdiction and Enforcement Act do?
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Provides that a state has power to enter a custody order if it’s the home state of the child or was the home state w/in the last 6 months & a parent still lives there
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What is considered the child's home state?
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It is where a kid lived w/a parent for 6 consecutive months prior to the proceeding
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