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73 Cards in this Set
- Front
- Back
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[Pre-Marriage Claims - Antenuptials]
When will a PRE-marriage K (to pay in the event of break up) be enforced? |
-ONLY when:
---IN WRITING and (cannot be implied) ---Supported by consideration OTHER THAN sex |
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[Pre-Marriage Claims - Antenuptials]
What are the 4 requisites to recognizing a pre-nup? |
-In writing and SIGNED BY BOTH (statute of frauds)
-Cannot have pre-agreed to get divorced later -Freely made (no duress) -Not unconscionable |
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[Pre-Marriage Claims - Antenuptials]
Is waiver of all maintenance (alimony) unconscionable? |
-ONLY if the spouse that gets no $ would completely unsupported (a ‘public charge’)
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[Pre-Marriage Claims - Antenuptials]
What is the SOL to challenge an Antenuptial? |
-6 years, tolled during marriage
-BUT get 2 years from date of discovery for fraud |
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[Pre-Marriage Claims – Non-marital children]
What is the NY definition of non-marital children? |
-Child that is conceived and born to parents that never married
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[Pre-Marriage Claims – Non-marital children]
What is a filiation proceeding? |
-Proceeding that establishes paternity of a non-marital child
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[Pre-Marriage Claims – Non-marital children]
What COURT does the filiation proceeding take place in? |
-FAMILY court
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[Pre-Marriage Claims – Non-marital children]
Who can bring a filiation proceeding case? |
-Biological mother
-Child acting through guardian -State of NY -Putative father |
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[Pre-Marriage Claims – Non-marital children]
WHEN can a filiation proceeding be filed? |
-Anytime before child turns 21
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[Pre-Marriage Claims – Non-marital children]
What effect in a filiation proceeding if DNA test shows 95% chance or greater that person is the father? |
-Shifts burden to person to show that he is NOT the father
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[Pre-Marriage Claims – Non-marital children]
When does the issue of equitable estopple come in the area of non-marital children? |
-A man that has MISTAKENLY represented himself as a father is ESTOPPED from denying paternity, and must still pay child support
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[Pre-Marriage Claims – Heart Balm]
What are the heart balm actions, ALL OF WHICH have been abolished in NY? |
-Breach of promise to marry
-Seduction of unmarried women -Alienation of affection (persuading married person to stop loving spouse) -‘Criminal conversation’ (sue the person that slept w/ spouse) -Jactitation of marriage (representing yourself as married to someone you’re not married to) |
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[Marriage - Capacity]
What is the gender capacity you need to marry? |
-Men + woman only
-BUT NY does recognize same-sex marriages performed elsewhere |
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[Marriage - Ceremonial]
What are the 2 requirements of a ceremonial marriage |
-License, and
-Ceremony |
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[Marriage - Ceremonial]
What 3 things are required to occur at the ceremony? |
-Officiant
-Witness -Exchange of promises (solemn declaration) – NOTHING SPECIAL NEEDS TO BE SAID |
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[Matrimonial Actions]
What are the 5 matrimonial action to end a marriage? And was the marriage corresponding to the action VOID ab initio, or VOIDABLE based on the outcome of the action? |
-Declaration of nullity (VOID)
-Annulments (VOIDABLE) -Legal Separation -Divorce -Dissolution |
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[Matrimonial Actions - Declaration of nullity]
What are the 2 grounds for a Declaration of nullity? |
-Pre-existing incapacity due to BIGAMY
-Pre-existing incapacity due to INCEST (is also a crime) NOTE: remember, these are VOID ab initio |
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[Matrimonial Actions - Annulment]
What are the 6 grounds for an annulment? |
-Too young (NY: 18+)
-Mental incapacity at the time of the marriage -5 Years POST-marriage insanity (need THREE court-appoints Drs. to agree) -Duress -Fraud -Incurable physical incapacity (ACTUAL ABILITY to have sex) *NOTE: These are VOID-ABLE. These grounds are WAIVED by the parties if you stay in the marriage after the ground is eliminated! |
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[Matrimonial Actions - Annulment]
What is the “default” statute of limitations for annulment actions? |
-6 years post-marriage
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[Matrimonial Actions - Annulment]
When can a minor in NY get married? |
If 16 or 17:
-Consent of BOTH parents If 14 or 15: -Consent of BOTH parents AND a judge Under 14: NEVER |
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[Matrimonial Actions - Annulment]
What's required to get an annulment for fraud? |
-Occurs when one fiancé concealed/lied about significant info
-MISREP must got to ESSENTIAL ASPECT OF MARRIAGE |
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[Matrimonial Actions - Annulment]
What's the statute of limitations to get an annulment for fraud? |
-3 years
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[Matrimonial Actions - Annulment]
What 3 things are ALWAYS enough to go to an essential aspect of marriage to get a ground for annulment for fraud? |
-Lied about religion
-Lied about ability to procreate -Lied about sex (willingness to use birth control, sexual history) |
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[Matrimonial Actions - Annulment]
What 1 thing is NEVER enough to go to an essential aspect of marriage to get a ground for annulment for fraud? |
-Lied about finances
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[Matrimonial Actions - Legal separation]
What does an action for legal separation allow? |
-Lets parties to lawfully live separate and apart
-Adjudicates economic rights -BUT LEAVES MARRIAGE INTACT |
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[Matrimonial Actions - Legal separation]
What are the 5 grounds for legal separation? |
-Cruel and inhuman treatment (physical or mental)
-Abandonment -Adultery -3 years of imprisonment -Failure to support |
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[Matrimonial Actions - Legal separation]
What is enough to rise to the level of cruel and inhuman treatment to get a legal separation? |
-SUBJECTIVELY, must be unsafe or improper for P to continue to cohabit with D
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[Matrimonial Actions - Legal separation]
What 4 elements are needed to show abandonment to get a legal separation? |
-Voluntary departure
-W/o consent -W/o justification -No intent to return (inferred from length of time) NOTE: In NY this can be CONSTRUCTIVE – stay in the home but ignore |
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[Matrimonial Actions - Legal separation]
What defenses is there to adultery (seeking to get a legal separation)? |
-Recrimination (unclean hands)
-Condonation (waiver = reconciliation and resume cohabitation) -Conivance (entrapment) -Statute of limitations (5 years from discovery of adultery) |
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[Matrimonial Actions - Legal separation]
How MUST a spouse prove adultery (seeking to get a legal separation)? |
-MUST be done with circumstantial evidence, OR
--- OPPORTUNITY, AND -Testimony FROM THE PARAMOUR! NOTE: Spouse seeking the legal separation CANNOT testify |
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[Matrimonial Actions - Divorce]
What are the 5 grounds for divorce in NY? |
-Cruel and inhuman treatment (physical or mental)
-Abandonment -Adultery -3 years of imprisonment -CONVERSION DIVORCE |
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[Matrimonial Actions - Divorce]
What 4 elements are needed to show abandonment to get a DIVORCE? |
-Voluntary departure
-W/o consent -W/o justification -No intent to return (inferred from length of time) -For divorce, BRIGHT-LINE 1 YEAR PERIOD MUST PASS NOTE: In NY this can be CONSTRUCTIVE – stay in the home but ignore |
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[Matrimonial Actions - Divorce] ***
What is required for a CONVERSION DIVORCE? |
-Separation that ripens into/converts to a divorce
-Live apart for ONE FULL YEAR FREE FROM cohabitation w/ intent to reconcile NOTE: Separation can either be a FULL LEGAL separation (discussed earlier) or a written agreement |
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[Matrimonial Actions - Divorce] ***
What is sufficient for a written separation agreement, preceding a CONVERSION DIVORCE? |
-In writing
-Acknowledged (notarized) -Filed w/ the court just before the CONVERSION DIVORCE |
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[Matrimonial Actions - Divorce] ***
What 2 actions will PREVENT a CONVERSION DIVORCE? |
-Cohabitation w/ intent to reconcile
-Breach of written separation agreement |
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[Matrimonial Actions - Dissolution]
What is a dissolution matrimonial action? |
-Only used when spouse is missing/disappeared
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[Matrimonial Actions - Dissolution]
What are the requirements to prove dissolution as a matrimonial action? |
-Missing for 5 years
-Diligent search -Publish request that spouse return for 3 consecutive weeks in a newspaper -Plf must have been domiciled in NY for at least 1 year |
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[Money – Maintenance (Alimony)]
What are the types of alimony? |
-Temporary = Maintenance Pendente Lite
-Permanent (post-judgment maintenance) |
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[Money – Maintenance (Alimony)]
What is the purpose of Maintenance Pendente Lite |
- Maintenance during pendency of divorce to PRESERVE THE STATUS QUO
-Ends when case is over |
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[Money – Maintenance (Alimony)]
What are the primary factors that court considers when determining what amount, IF ANY, for permanent post-judgment maintenance? |
-Fault
-Health/age of parties (hard to get work) -Education/job skills -Standard of living during the marriage |
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[Money – Maintenance (Alimony)]
When will a court grant MODIFICATION of Maintenance normally? |
-Substantial change in circumstances
Ex: Payor laid off NOTE: Payments in arrears CANNOT be modified |
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[Money – Maintenance (Alimony)]
When will a court grant MODIFICATION of Maintenance WHEN THERE WAS A TERM IN A SEPARATION AGREEMENT TO GET A CONVERSION DIVORCE? |
-EXTREME HARDSHIP
Ex: Extreme inflation |
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[Money – Maintenance (Alimony)]
When will there be automatic termination of Maintenance? |
-Death of either party
-Recipient re-marries or OPENLY LIVES WITH ANOTHER as if spouses |
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[Money – Maintenance (Alimony)]
What tools are there to enforce Maintenance orders? |
-Seize assets
-Attach wages -Take Drivers or Professional Licenses |
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[Money - Property Division] ***
What law governs property division in NY? |
-The EDL – equitable distribution law
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[Money - Property Division] ***
What is the first step to determining property division? |
-Categorize all asset and loans into 3 categories:
---Husband’s separate property ---Wife’s separate property ---Marital property |
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[Money - Property Division] ***
What is the second step to determining property division? |
-Give H & W their respective property shares (they do not get divided)
-Apply equitable factors to distribute the marital property |
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[Money - Property Division] ***
What are the only 5 types of property that are separate property? |
-Assets owned pre-marriage
-Gifts/inheritances received DURING the marriage in individual H or W’s sole name -Property parties agree to be treated as separate property -Personal injury compensation -Passive appreciation in value of separate property (NOTE!!!: Appreciation due to active work during marriage is MARITAL property) -BUNTZMAN Case: Maintenance payments for prior marriages are NOT counted towards marital property |
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[Money - Property Division] ***
What is consider marital property? |
-Everything else, INCLUDING, in NY, THE VALUE OF PROFESSIONAL LICENSES DISCOUNTED TO PRESENT VALUE
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[Money - Property Division] ***
What are the equitable factors that court considers when determining the split of marital assets? |
-Health/age of parties (hard to get work)
-Education/job skills -Standard of living during the marriage NOTE: CANNOT LOOK AT FAULT!!! NOTE: Does NOT have to be 50/50 |
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[Money - Property Division] ***
What is the term for when a court orders a lump-sum payment of his/her share of marital property? |
-Distributative award
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[Children - Adoption]
Who is eligible to adopt in NY? |
-2 married persons, OR
-Single person (including married but separated persons), OR -Married minor can adopt spouse’s children |
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[Children - Adoption]
Who may be adopted? |
-Anyone, so long as intent to establish bona fide parent-child relationship
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[Children - Adoption]
Who are the necessary parties to consent to an adoption? |
-If adoptee is a minor = parents
-If adoptee is 15+ = adoptee must ALSO consent -If adoptee is in legal custody of another = custodian must consent |
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[Children - Adoption]
When can the consent requirement be dispensed with? (4) |
-ABANDONMENT for 6 months
-NEGLECT (1 year or more with insubstantial contact and NO SUPPORT) -Parent is mentally incapacitated so she cannot care for child -Parent surrenders child |
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[Children - Adoption]
What is required for the "matching” w/ prospective adoptive parents? |
-3 month trial period
-Then hearing |
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[Children – Termination of Parental Rights]
What must be shown to terminate parental rights? (4) |
-Clear and convincing evidence that either:
---ABANDONMENT for 6 months ---NEGLECT (1 year or more with insubstantial contact and NO SUPPORT) ---Parent is mentally incapacitated so she cannot care for child ---ABUSE |
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[Children - Child Support]
WHO owes the obligation of child support? |
-Parents
-AND step-parent if child would have to resort to public assistance otherwise |
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[Children - Child Support]
How long must parents support children through in NY? |
-21
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[Children - Child Support]
Under what circumstances can the parent’s obligation to support be extended? |
-Can be extended through college if child has sufficient academic ability and parents have sufficient ability to pay
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[Children - Custody]
What is the test for determining custody? |
-Best interest of the child (BIC)
NOTE: NO gender bias |
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[Children - Custody]
What are a few factors for the BIC standard? |
-Express preferences of child
-Child’s bond w/ parents -History of domestic violence |
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[Children - Custody]
How is testimony elicited from young children to determine BIC? |
-Judge CAN take testimony in camera, in chambers, w/ stenographer
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[Children - Custody]
What is the standard for granting custody to non-biological parent? |
-PRESUMPTION it’s best to be w/ non-biological parent
-Non-parent has to show extraordinary circumstances |
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[Children - Custody]
When can a custodial parent re-locate? |
-MUST get court permission to do so by showing BIC
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[Children - Visitation]
When will a court deny visitation rights for non-custodial parent? |
-Very rare
-Visitation is NOT contingent on paying child support |
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[Children - Visitation]
When, in NY, may a grandparent get visitation of grandchildren? |
-Must be “special circumstances” giving rise to a substantial state interest
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[Conflict of Laws Issues]
When will an out-of-state marriage be recognized in NY? |
-Valid were consummated is valid in NY
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[Conflict of Laws Issues]
When will NY recognize out-of-state divorces? |
-If BOTH spouses participated, cannot be collaterally attacked
-If ex parte divorce, it is PRIM FACIA valid In NY in deft. Had service of process, but can be overcome by showing spouse who procured divorce was not a domiciliary of the foreign state |
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[Conflict of Laws Issues]
When will NY recognize FOREIGN COUNTRY divorces? |
-If BOTH spouses participated, cannot be collaterally attacked
-If ex parte divorce, TOTALLY INVALID |
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[Federalism and Child Support]
How does a NY resident enforce support orders on out-of-state non-custodial parent? |
-Uniform Interstate Family Support Act (UIFSA)
-Permits custodial parent to procure order to be sent to out-of-state employer of non-custodial parent |
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[Federalism and Child Support]
Which state has jurisdiction of the support orders? |
- UIFSA provides that the ORIGINAL issuing state has CONTINUING jurisdiction over support orders
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[Federalism and Custody]
Which state has power to enter child custody orders? |
-Home state of the child (6 months + parent there), OR
-Was the home state w/i the last 6 months AND ONE parent still lives there |
