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20 Cards in this Set
- Front
- Back
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Ceremonial marriage
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2 req'ts
- License from the gov't official - Ceremony (3 req'ts) --- Officiant --- Witness --- Exchange of promises/solemn declaration |
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Dissolution/termination of marriage
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5 different actions
- Declaration of nullity - Annulments - Legal separation - Divorce - Dissolution action |
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Declaration of nullity
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Appropriate CoA where there is an incapacity on the part of one of the parties, so significant that it renders the marriage utterly void (2 grounds)
- Bigamy - Incest (ancestors, descendents, siblings by the whole or the half, lineal relatives up/down one generation) |
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Annulments
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Appropriate CoA where one party lacked capacity to marry BUT the capacity problem only makes the marriage VOIDABLE; based on 6 grounds (generally need corroboration; grounds may be waived if remain)
#1 Youth (need to be ≥18) --- Between 16 and 18, need consent of both parents --- Between 14 and 16, need consent of both parents + a judge #2 Mental incapacity @ the time of the marriage (only can be waived if they are cured) #3 5 years of incurable insanity arising after the marriage --- Need 3 Ct appointed physicians, all of whom agree on the diagnosis #4 Duress --- Waivable if you recover your freedom of action (remain in the marriage after the threat is removed) #4 *** Fraud --- Misrepresentation/concealment of info by one fiancée prior to the marriage that goes to an essential aspect of that marriage, and that is calculated to deceive a reasonably prudent person (IMPORTANT/ESSENTIAL + PLAUSIBLE) --- 3 ESSENTIALS ----- Misrepresentation/concealment of info concerning religion (denomination, degree of devotion, raising kids in a future faith) ----- Matters relating to procreation/sex ----- Economics is NOT essential aspect --- SoL: 3 years (after discovery, so can’t just continue to co-habitate) #5 Incurable physical incapacity --- Inability to consummate the marriage --- Condition has to be incurable --- This ground is the only ground on which you will not get a jury trial SoL: 6 years |
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Legal separation
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Leaves the marriage in tact and adjudicates the economic rights (SoL 5 years, 5 grounds)
#1 Cruel and inhumane treatment (must be serious) --- Physical: Domestic violence ----- Domestic violence act: Can get a protective order instead --- Mental: Psychological abuse #2 Abandonment (physical or constructive (no sex)), 4 elements --- Voluntary departure by one spouse from the other --- W/o consent of P spouse --- W/o justification (escaping domestic violence is justified) --- W/o intent to return (usually inferred from the length of time you are away) #3 Adultery --- Def: Act of sex or deviant sex voluntarily performed w/ another person who is not your spouse while you’re married --- Defenses ----- Recrimination (dirty hands): P committed adultery ----- Condonation: Waiver (knowledge of misconduct by D, forgiveness, and a resumption of co-habitation) ----- Connivance: Entrapment (P spouse procured D to commit adultery) --- SoL: 5 years from discovery --- Proceeding ----- Spouses can testify to the marriage, to disprove the adultery, to defense ----- Can’t testify as a party to prove the adultery - must come from the 3d person, or from circumstantial evidence (opportunity + disposition) ------- Opportunity: D was available ------- Disposition: Some previous indication of proclivity #4 3 years of consecutive imprisonment #5 Failure to support |
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Divorce
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No no-fault divorce in NY, 5 grounds:
#1 Cruel and inhumane treatment (must be serious) --- Physical: Domestic violence ----- Domestic violence act: Can get a protective order instead --- Mental: Psychological abuse #2 Abandonment (physical or constructive (no sex)), 4 elements --- Voluntary departure by one spouse from the other --- W/o consent of P spouse --- W/o justification (escaping domestic violence is justified) --- W/o intent to return (usually inferred from the length of time you are away) --- Absence of ≥1 full year #3 Adultery --- Def: Act of sex or deviant sex voluntarily performed w/ another person who is not your spouse while you’re married --- Defenses ----- Recrimination (dirty hands): P committed adultery ----- Condonation: Waiver (knowledge of misconduct by D, forgiveness, and a resumption of co-habitation) ----- Connivance: Entrapment (P spouse procured D to commit adultery) --- SoL: 5 years --- Proceeding ----- Spouses can testify to the marriage, to disprove the adultery, to defense ----- Can’t testify as a party to prove the adultery - must come from the 3d person, or from circumstantial evidence (opportunity + disposition) ------- Opportunity: D was available ------- Disposition: Some previous indication of proclivity #4 3 years of consecutive imprisonment #5 *** Conversion divorce (separation + conversion of separation to divorce, 3 req'ts) --- Separation ----- Result of earlier litigation for a Ct-ordered legal separation, OR ----- Result of a mutual agreement ------- In writing ------- Must be freely made (w/o undue influence/duress) ------- Must be acknowledged and filed w/ the Ct prior to obtaining the divorce ------- Rescinded if you have sex w/ INTENT TO RECONCILE ------- Material breach precludes conversion divorce --- Must live separate & apart for ≥1 year ----- Can’t co-habit, can’t have sex ----- During this time, can’t have sex w/ other people, that’s adultery --- Can go to the Ct and ask for a divorce |
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Dissolution action
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Used when the spouse has disappeared – missing w/o any tidings ≥5 years
--- Petitioning spouse is obligated to make a diligent search --- Publish a request that your spouse return, for 3 consecutive weeks in an English speaking newspaper --- P must have lived in NY for ≥1 year, or the couple has been domiciled in NY Will not adjudicate economic issues (logically irrelevant where the spouse is dead) |
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Pre-nup agreements
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Enforceability req’ts
- In writing and signed by both parties - Parties cannot have PRE-AGREED on a divorce, or K’ed to engage in a conduct that is equivalent to a divorce - Freely made – no duress - Cannot be unconscionable --- A waiver of all support (alimony/maintenance) is NOT NECESSARILY unconscionable; it only becomes unconscionable if it would leave the party w/o any support (public charge, or having to seek public assistance) - SoL for all grounds to challenge: 6 years --- Tolled during the marriage --- Fraud: 2 years from discovery |
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Alimony (maintenance)
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- Pre-judgment: Allowed to preserve status quo
- Post-judgment (not an automatic entitlement) --- Need to demonstrate need (Ct is allowed to consider a wealth of factors) ----- Fault ----- Health & age of parties ----- Educational attainment & job skill (& time necessary to obtain skill) ----- Sole custodian of minor kids ----- Duration of marriage & standard of living during the marriage --- Usually for an amount, for a continuous period ----- Modification ------- Need showing of SUBSTANTIAL CHANGE in circumstances ----- If based on conversion divorce based on a separation agreement, agreements can be changed only based on EXTREME HARDSHIP --- Termination ----- Death of either party ----- Recipient remarries or openly lives w/ another as if they were spouses --- Enforcement ----- Seize assets ----- Attach wages ----- Driver’s license ----- Professional licenses ----- Recreational licenses |
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Property divisions
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Categorize all assets into H/W/M property
- Separate property --- Everything they owned prior to the marriage --- Any gifts received during the marriage in his/her sole name --- Property that parties agree to treat as separate property --- *** Passive appreciation on separate property assets (due to passage of time and market forces), BUT active appreciation due to investment of work and labor during the period of marriage, that is a marital assets - Marital property --- Wedding gifts --- Everything else owned by these two people, acquired either or both of them, regardless whether they both work outside the home, or at home, or how they were titled (chattel, RE, financial assets, vested deferred compensation) --- Professional degree, professional license earned/obtained during the marriage ----- Take the asset, discount it to present value (O’Brien) ----- Value of a professional degree does not merge into the value of a professional practice Distribute: Give husband’s to husband, wife’s to wife, marital property divided based on equitable factors - Look at the factors we looked @ during maintenance, but don’t look at fault - Alimony paid to previous spouse does not factor into 2d alimony distribution - Ct can require the property to be distributed in kind, or one party to pay a lumpsum to the other (distributive award) |
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Adoption
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- Who can adopt: 2 married adults, single adult, separated adult, married minor (spouse's kids)
- Any kid/adult can be adopted, so long as the purpose is to provide a bonafied parent-kid relationship - Process --- Consent from all necessary parties (parents, guardian, adoptees>14) --- Demonstrate unnecessary of consent w/ biological parent (surrender custody, incapacitated, abandoned kid for >6 mos) ---- Investigate adoptive parents (interviews, visits, religious-matching) ---- 3-mons trial period followed by a hearing |
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Termination of parental rights
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Requires clear & convincing evidence on 1 of 4 grounds
- Abandonment (>6 mos w/o contact) - Neglect (>1 year of insubstantial contact (non-payment of support)) - Incompetence - Abuse |
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Kid support
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- Every parent must support biological kids thru age 21
- Can be extended past 21 thru the completion of a college degree, provided that the kid has sufficient academic capability, and parents have financial capability - Step-parent has a duty of support, if kid would have to resort to public assistance otherwise - Need support when the kid is not living w/ one parent (non-custodial parent) - Non-custodial parent must pay according to child support guidelines – a % of the income - Subject to modification, termination, and enhancement like maintenance issues |
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Custody determination
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Best interest of the child (BIC)
- No presumption of gender of the parent - Presumption for the biological parent (non-parent has to show EXTRAORDINARY CIRCUMSTANCES or UNFITNESS of the biological parent to prevail) - Anything rational/relevant counts (party preferences and situations) Relocation of the custodial parent needs Ct permission and BIC |
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Kid visitation
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- Non-custodial parent almost always allowed to visit (supervised visits rather than denied visits)
- Grandparents may be denied |
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Out-of-state marriages
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Marriage valid where Ked is valid in NY, unless it violates a strong public policy of the state
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Out-of-state divorces
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- If both spouses participated, divorce is treated as valid in NY, and cannot be collaterally attacked, it’s res judicata as to all issues that can be raised
- Ex parte divorce: Prima facie valid, if D had service of process, but can be collaterally attacked by proving that the spouse who procured it was not a domiciliary of the foreign state |
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Foreign country marriages & divorces
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- If both parties are there, treat as valid b/c of comity
- Ex parte foreign divorce totally invalid |
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Support orders
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Uniform Statute: Uniform Interstate Family Support Act
- Permits a custodial parent to send a Ct order to out-of-state employer of a deadbeat parent - State that issued the support order has continuing jur’n of the matter --- Prevents inconsistent order (second state can’t issue a different order) Full Faith and Credit for Child Support Orders Act |
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Custody orders
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A state has power to enter a custody order if it is the home state of the child or was the home state w/in the last 6 mos (for at least 6 mos), and a parent still lives there
- If kid is <6 mos, it’s the length of time kid is alive Once a state w/ jur’n enters an order, it has exclusive order as long as the kid lives in the state |
