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29 Cards in this Set
- Front
- Back
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Will the law enforce an agreement between two unmarried co-inhabitants?
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Yes provided that the consideration is not sex.
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What are the elements of a valid prenuptial agreement?
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1. Must be in writing and signed by both
2. Must not contract divorce or conditions that could lead to it 3. Agreement must be freely made 4. Agreement must not be unconscionable (not make a party a public charge) |
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What is the statute of limitations to challenge a pre-nup?
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1. 6 years but tolled by marriage
2. And if fraud challenge then 2 years from discovery |
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What are the standing requirements for a filiation proceeding
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1. Can be filed by child by representative
2. Can be filed by NY state 3. Can be filed by putative father 4. Can be filed up until child turns 21 |
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In a filiation proceeding where paternity if proven to a certainty of greater than 95 percent that is father, creates presumption, and the burden shifts to the father, T/F?
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True
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How does equitable estoppel apply to filiation proceedings?
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• Man that has mistakenly represented himself as and acted as a child’s father, that person can be estopped from denying paternity and can thus be ordered to pay on support. (usually requires detrimental reliance)
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What are the requirements of a valid ceremonial wedding?
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1. Capacity of parties
2. An affient - someone to conduct 3. Witness 4. Solemn declaration |
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What must be true for there to be an annulment (not the grounds)?
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1. Must not remain in the marriage
2. Grounds and testimony must be corroborated 3. SOL is 6 years |
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What are the grounds for a declaration of annulment?
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1. Too young
2. Mental Capacity 3. 5 years of incurable insanity arising after the marriage 4. Duress 5. Fraud 6. incurable physical incapacity (can't consummate the marriage) |
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What constitutes fraud for the purposes of annulment?
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Misrepresentation or concealment that goes to an essential aspect of marriage ....
1. Religious misrepresentation 2. Matters relating to procreation (financial is not grounds) |
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What are 5 grounds for a legal separation?
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1. Cruel and inhuman treatment (subjective test)
2. Abandonment (must be permanent and no sex can count) 3. Adultery (must have clean hands and no forgiveness) 4. More than 3 years of imprisonment 5. Failure to support |
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What are the grounds for a divorce in NY?
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1. Cruel and inhuman treatment (subjective test)
2. Abandonment (must be permanent and no sex can count) 3. Adultery (must have clean hands and no forgiveness) 4. More than 3 years of imprisonment |
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What are elements of a conversion divorce in NY?
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1. Separation (voluntary/court ordered
2. Live separately (without sex) for 1 year 2. Separation agreement |
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What is a dissolution action?
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Action to dissolve marriage because spouse has been missing without any contact
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What are the elements of a dissolution action?
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1. Diligent search
2. Publish request in English speaking newspaper 3. Plaintiff must live in NY for a year or at time of disappearance couple lived in NY |
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Maintenance is not a matter of ________ in NY but rather a matter of ________.
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1. Right
2. Need |
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What does the court consider when deciding whether to grant alimony?
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Anything but some examples
1. Fault of parties 2. Age and health of parties 3. Custody of children 4. Education and job skills 5. What was the living standard |
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In a petition to modify maintenance, will the arrears be modified as well as future payments?
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No
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Termination does not end the obligation to pay maintenance, T/F?
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False but that can be modified in a separation agreement.
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Is the appreciation of property owned by one spouse before the marriage considered marital or separate property?
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Passive - separate property (house increasing in value)
Active - marital (making repairs to the house) |
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Are gifts or inheritance obtained by a spouse in the spouses sole name during the marriage marital property?
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No. Separate property.
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Is property that the parties agree to treat as separate property in fact marital property?
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No. Its actually separate property.
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Is personal injury compensation marital property?
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No. Separate.
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How is marital property distributed?
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1. Distributed by equitable principles though the longer the marriage the more likely it will be 50/50
2. Can be paid in a lump sum or by order and discretion of court |
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To adopt a child that is over 14 in NY you must _________.
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Obtain the child's consent
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Can a married minor adopt a child?
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They can petition to adopt their spouses children.
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What are the 4 grounds for termination of parental rights and what standard is applied?
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1. Abuse
2. Neglect 3. Incapacity 4. Abandonment Clear and convincing evidence |
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When there is a custody dispute between a parent and a non-parent _________.
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There is a presumption in favor of the parent that can only be overcome by a showing of unfitness or extreme circumstances.
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What are non-parental visitation rights?
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1. They can petition to the court for visitation and the BIC rule applies
2. If parents object then non-parent must show special circumstances |
