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60 Cards in this Set
- Front
- Back
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Will we enforce a contract between unmarried cohabitants? |
Yes |
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What is the exception to rule regarding enforcing contracts between cohabitating parties? |
Not enforceable if any part of the consdieration is sex |
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What are the requirements for challenging an antenuptial agreement? |
1) Must be in writing 2) Must have gotten married 3) Must establish fraud, duress, or unconscionability |
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Is a threat to call off a wedding considered duress? |
No |
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What are children born to unmarried women called? |
Non-marital children |
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What is a lawsuit to determine whether a man is the biological father called? |
Filiation proceeding |
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Where does a filiation proceeding take place? |
In family court |
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Can a father be estopped from denying fatherhood of a child? |
Yes if he holds himself out as father and the child substantially relies |
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Can a mother be estopped from denying a man's fatherhood and declaring another man to be the father? |
Yes - is she holds one man out as the father |
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What are the requirements for a marriage in NY? |
1) Must go through ceremonial marriage 2) Must get license 3) Must have a ceremony - before an officiant and witness 4) Must have solemn declaration |
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Is common law marriage recognized in NY? |
No - but it is portable so if other state recognizes it then NY will enforce it |
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When is a declaration of nullity appropriate? |
When one party lacked capacity prior to marriage and the incapacity makes the marriage utterly and completely void |
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What are the two bases for nullity? |
1) Bigamy 2) Incest |
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Are the bases for nullity waivable? |
No |
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When is an annulment declaration appropriate? |
Capacity problem prior to marriage that made your marriage voidable |
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Can the grounds for annulment be waived? |
Yes |
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What are the grounds for annulment? |
1) Age (too young) 2) Mental incapacity prior to the marriage 3) Duress 4) Fraud 5) Physical Incapacity 6) 5 years of incurable insanity after the date of the marriage |
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What are the age restrictions regarding marriage in NY? |
1) Can consent alone if 18 or older 2) 16-18 year olds can get married with consent of parents 3) People age 14-16 can get married with consent of parents and consent of judge |
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When is fraud appropriate grounds for divorce or annulment? |
Prior to the marriage one party misrepresents or conceals facts going to things essential to the marriage |
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How does a person waive a ground for annulment? |
Continued cohabitation after impediment has been removed |
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Cohabitation |
Living together and having a sexual relationship |
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Does a suit for legal separation end the marriage? |
No |
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What does a suit for legal separation do? |
Gets court order: 1) Making it lawful for parties to separate 2) Adjudicating child custody 3) Adjudicating financial separation |
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What are the 5 grounds for legal separation? |
1) Cruel and inhuman treatment 2) Abandonment 3) Adultery 4) 3 years of continuous imprisonment 5) Failure to economically support |
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What are the elements of abandonment of a spouse? |
1) Voluntary departure of one spouse 2) Without consent of other spouse 3) That is unjustified 4) Without intent to return |
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What are the affirmative defenses to charges of adultery? |
1) Recrimination - offsetting act of adultery by the Plaintiff 2) Condonation - if after learning of adultery the innocent spouse continues to cohabitate 3) Connivance - Plaintiff lured Defendant spouse to commit adultery 4) Statute of Limitations - 5 years |
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What are the 6 grounds for divorce? |
1) Cruelty 2) Abandonment 3) Adultery 4) 3 years imprisonment 5) Conversion divorce 6) Irretrievable breakdown of the marriage for a period of at least 6 months
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What are the steps for conversion divorce? |
1) Couple separates - Result of suit for separation or - result of mutual agreement 2) Must be separated for one year 3) Court will convert to divorce |
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What are the two issues regarding conversion divorce |
- Validity of separation agreement - Whether separation agreement was rescinded |
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How is a separation agreement rescinded? |
Cohabitation with intent to reconcile |
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What is needed to prove irretrievable breakdown of a marriage for a period of at least 6 months? |
One party must state so under oath |
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Will a divorce be finalized while collateral issues are unresolved? |
No |
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When is a claim for dissolution appropriate? |
When a spouse has gone missing "without any tidings" for a period of 5 years |
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What are the formal requirements of a claim for dissolution? |
1) Have to make a diligent search 2) Must publish a request for 3 consecutive weeks in an English speaking newspaper 3) Must live in NY for a year or NY must be matrimonial domicile at time of disappearance |
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What are the automatic orders that are entered when matrimonial cases are filed? |
1) Freeze of economic situation 2) Must make full financial disclosures |
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What is alimony called in NY? |
Maintenance |
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Can a person get temporary maintenance while a matrimonial case is pending? |
Yes |
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Can people ask for a modification of maintenance? |
Yes - but always prospective, never retroactive |
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When does maintenance automatically terminate? |
1) At the death of of either spouse (unless otherwise contracted 2) When other spouse remarries or cohabitates with other person |
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What are the two steps in property division? |
1) Categorize assets 2) Distribute based on equitable factors |
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Does marital fault matter in the division of property? |
No |
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What are the categories for the division of property assets? |
1) Husband Separate 2) Wife Separate 3) Mutual |
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What qualifies as separate property? |
1) Any item owned by a spouse prior to the marriage 2) Any gift or inheritance after the date of marriage in sole name 3) Any property that they agree to treat as separate 4) Any pain and suffering received in a court judgment 5) Any passive appreciation in value of separate property |
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What qualifies as marital assets? |
Anything acquired during the marriage that does not qualify as separate property |
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What are the substantive grounds for the dissolution of parental rights? |
- Abandonment - Permanent Neglect - Abuse - Mental illness or capacity that diminishes ability to handle responsibility - Murder of sibling of the child |
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What qualifies as abandonment for the purposes of the dissolution of parental rights |
Failure to communicate for 6 months that evinces an intent to forego parental rights |
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What qualifies as permanent neglect? |
When child has been removed from parental care and put into state custody and the parent has failed to maintain substantial contact or plan for the future of children |
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What is the standard of evidence needed for the dissolution of parental rights? |
Clear and convincing evidence - right to appointed counsel |
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Can a termination of parental rights include a clause for visitation? |
No |
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Who can adopt in NY? |
Married people acting jointly, signle people, cohabitants, married minor can adopt step child |
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Who can be adopted in NY? |
Anyone |
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Who must consent for an adoption? |
Anyone and everyone with interest -Child under 18 - need both biological parents - Child over 14 - adoptee must consent - Adult - adoptee must consent - Child being raised by someone - those parties must consent |
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What are the steps in adoption? |
- Need consent from all interested parties - Investigation of adoptive parents - Three month trial period before adoption is finalized |
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Who is required to provide financially for their children? |
Every biological parent |
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How long must a person pay child support? |
Until the child is 21 |
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Can parents contract around the child support guidelines? |
Yes but probably not lower than guidelines |
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What standard is used for determining child custody? |
Best interest of the child |
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What standard is used for determining child custody between biological parent and non-parent? |
Best interest of child but presumption in favor of biological parent |
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Is visititation usually awarded non-custodial parent? |
Yes |
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Relocation of custodial parent |
Usually not allowed without consent of judge - best interest of the child standard |
