Ny - Domestic Relations

Front 1

Is an express contract between unmarried cohabitants enforceable (e.g. regarding what will happen upon breaking up)

Back 1

Yes, provided there is some consideration other than sex

Front 2

Will NY imply a contract between unmarried cohabitants re: obligations if they split?

Back 2

No

Front 3

What is required for a prenuptial agreement to be valid?

Back 3

1) Agreement must be in writing and signed by both parties
2) Couple must have married
3) Contract cannot contain an agreement that the parties will eventually divorce
4) Contract cannot be the product of duress
5) Contract cannot be unconscionable

Front 4

When is a prenuptial agreement unconscionable?

Back 4

If the poorer party would be left incapable of self-supporting

Front 5

What is a "non-marital child"?

Back 5

Child conceived by, and born to, parents who never married

Front 6

What is the standard of proof in a filiation proceeding?

Back 6

Clear and convincing evidence

Front 7

Who are proper petitioners in a filiation proceeding?

Back 7

1) mother
2) child
3) state
4) putative child

Front 8

What is the application of equitable estoppel to determining the identity of the father of a non-marital child?

Back 8

If a man who is not in fact the biological father has held himself out as the father (i.e. paid support, acted as the father, developed a relationship w the father), and the child has relied on this, that man can be estopped from denying paternity

Front 9

What are the two requirements of a valid marriage?

Back 9

1) license
2) ceremony

Front 10

What are the three requirements of a valid marriage ceremony?

Back 10

1) officiant
2) witness (one needed)
3) exchange of promises

Front 11

What are the five matrimonial actions for the termination of a marriage?

Back 11

1) declaration of nullity
2) annulment
3) separation
4) divorce
5) dissolution

Front 12

What are the grounds for a declaration of nullity of a marriage?

Back 12

1) incest
2) bigamy

Front 13

What are the six grounds for an annulment?

Back 13

1) too young
2) mental incapacity
3) duress
4) fraud
5) physical incapacity (prevents safe and normal intercourse)
6) five yrs incurable insanity after marriage

Front 14

How may grounds for annulment be waived?

Back 14

Waiver = staying in the marriage after the incapacity problem has been removed

Front 15

When will fraud provide a valid grounds for an annulment? What are two main examples?

Back 15

Misrepresentation or concealment of information by an engaged person regarding a matter that goes to an essential aspect of marriage

Examples
1) Religion
2) Sex or procreation

Front 16

What is the statute of limitations for bringing an annulment?

Back 16

6 years

Front 17

What are the five grounds for separation?

Back 17

1) cruel and inhuman treatment
2) abandonment
3) adultery
4) three years of consecutive imprisonment
5) failure to provide economic support

Front 18

What is cruel and inhuman treatment w/r/t grounds for a separation?

Back 18

Physical or mental abuse that endangers the wellbeing of the plaintiff spouse

Front 19

What is required for abandonment to constitute grounds for separation?

Back 19

1) Voluntary departure by D spouse
2) W/o consent of other spouse
3) W/o justification
4) No intent to return

Front 20

What are the four defenses to adultery as a grounds for separation? What are the definitions?

Back 20

1) Recrimination: If the D spouse can show that the P is guilty of an offsetting adultery, relief is denied

2) Condonation: P spouse, after learning of the adultery, forgives the D and resumes cohabitation (sex) w the D

3) Connivance: P spouse actually procured/arranged the adultery, lured D into committing the adultery

4) Statute of limitations: 5 yrs from discovery of extramarital behavior

Front 21

About what three things may spouses testify w/r/t adultery?

Back 21

1) To prove the marriage
2) Deny or disprove the adultery
3) Deny or rebut a defense

Front 22

What are the six grounds for divorce?

Back 22

1) Cruel and inhuman treatment
2) Abandonment
3) Adultery
4) 3 yrs imprisonment
5) Conversion divorce
6) Irretrievable breakdown of the marriage (no fault)

Front 23

What is the time period required for abandonment to constitute a grounds for divorce?

Back 23

1 yr

Front 24

What is a conversion divorce?

Back 24

1) Couple must first separate
2) Live separately for 1 yr
3) Return to ct and convert separation into divorce

Front 25

When can a party seek dissolution of a marriage? What are the requirements?

Back 25

Used when a spouse has disappeared

Requirements
1) Proof that spouse has been missing w/o any tidings for a period of 5 yrs
2) Diligent search
3) Publish a request that your spouse return, for three consecutive weeks in an English-language newspaper
4) P must be a NY resident for at least 1 yr, or NY was the matrimonial home at the time of disappearance

Front 26

What is the standard for determining whether to award maintenance?

Back 26

Based on a showing of need by the poorer spouse. Standard: court's equitable discretion

Front 27

What is required in order for there to be a modification of a maintenance award?

Back 27

A substantial change in circumstances?

Front 28

When will a maintenance award generally terminate?

Back 28

1) death of the other party
2) recipient remarries or openly lives w another as if they were spouses

Front 29

What are a court's remedies for unpaid maintenance?

Back 29

1. Seize property
2. Attach wages
3. Take away driver’s license
4. Take away professional license
5. Take away recreational licenses
6. If recipient has to sue: party suing can get counsel fees

Front 30

What qualifies as separate property for the purposes of dividing property upon termination of a marriage?

Back 30

1) Anything owned by either spouse before the date of the wedding
2) Any bequests or gifts after the date of the marriage to either spouse in his/her sole name
3) Property that the properties agree will be separate property (never tested)
4) Personal injury awards
5) Appreciation in the value of categories 1-4 unless the appreciation is due to active participation or effort of spouse

Front 31

Who must consent to an adoption if a child is under 18?

Back 31

Both biological parents

Front 32

When must the adoptee consent to the adoption?

Back 32

Over 14 yrs old

Front 33

What is the evidentiary standard for termination of parental rights? What are the four grounds?

Back 33

Clear and convincing evidence

Grounds
1. Abandonment
2. Neglect
3. Mental incompetency
4. Abuse

Front 34

When does a step-parent have a duty to support a step-child?

Back 34

if the child would otherwise have to go on public assistance

Front 35

What is the standard for determining child custody?

Back 35

Best interests of the child

Front 36

Which non-parents have standing to challenge the custody of a child? What is the standard?

Back 36

1) grandparents
2) siblings

Standard: best interests of the child, but heavily weighted in favor of parent

Non-parent must show that parent is unfit or extraordinary circumstances

Front 37

What is required for a non-parent to receive visitation rights of a child?

Back 37

Non-parent must make a showing of special circumstances establishing substantial state interest

Front 38

If divorce occurred out of state with the participation of both spouses, can it be collaterally attacked in NY?

Back 38

No

Front 39

What is the effect of an out-of-state ex parte divorce?

Back 39

Prima facie valid in NY, but can be collaterally attacked