NY Bar Exam 2011: Domestic Relations
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41 terms
Terms | Definitions |
|---|---|
 Limits on contracts between unmarried cohabitants regarding relationship | Will enforce express, but not implied, agreements provided that consideration is NOT sex |
| Prenuptial requirements (and SOL) | 1. In writing, signed by both 2. Cannot have pre-agreed on divorce or contracted to engage in conduct constituting grounds for divorce 3. Must be freely made 4. Must not be unconscionable (waiver of all support only unconscionable if would leave weaker party a public charge) SOL: 6 years from end of marriage (2 years from discovery of fraud) |
| Filiation proceeding | 1. Brought in Family Court by mother, child, state, father 2. Can be filed until child is 21 3. Usually DNA evidence (>95% = presumption) |
| Paternal equitable estoppel | Man who mistakenly represents and acts as child's father can be estopped from denying paternity and ordered to pay child support Normally requires evidence child relied on paternity to child's detriment |
| Heart balm actions | ALL ABOLISHED 1. Breach of promise to marry 2. Seduction of unmarried female 3. Alienation of affections 4. Criminal conversation 5. Jactitation of marriage |
| Requirements to get married | 1. Capacity (a) every capacity issue in contract law (b) every capacity issue that is reason for dissolution 2. Ceremonial marriage (a) license (b) ceremony (officiant, witness, solemn declaration) |
| Same-sex marriage | legal in NY Valid same-sex marriages performed elsewhere enforced in NY |
| Five matrimonial actions | 1. Declaration of nullity 2. Annulment 3. Action for legal separation 4. Divorce 5. Dissolution action |
| Declaration of nullity | Preexisting incapacity of one spouse significant enough to render marriage void (marriage already void, so never required) Grounds: 1. Bigamy 2. Incest |
| Annulment (and SOL) | One party lacked capacity to marry but only makes marriage voidable (waived if remained in marriage after capacity problem resolved) SOL: 6 years (3 fraud) Grounds: 1. Infancy (never <14, 14-16 both & judge) (discretionary) 2. Mental incapacity at time of marriage 3. Five years incurable insanity post-marriage (3 doctors) 4. Duress 5. Fraud (going to essential aspect of marriage; religion, procreation, sex) 6. Incurable physical incapacity (inability to consummate) (no jury trial) |
| Action for legal separation | Either permanent or temporary; tried to judge only Grounds: 1. Cruel and inhuman treatment (if physical, continuing cohabitation likely not defense) 2. Abandonment 3. Adultery 4. Three years consecutive imprisonment 5. Failure to support (economically) |
| Abandonment | 1. Voluntary departure by one spouse from another 2. Without consent 3. Without justification 4. No intent to return Constructive: abandon marriage as abstraction through behavior (eg, refuse to have sex) |
| Adultery | 1. Must be voluntary 2. Must be with another person Defenses: 1. Recrimination (P also did) 2. Condonation (awareness, forgiveness) 3. Connivance (P spouse induced) SOL: 5 years |
| Divorce | Grounds: 1. Cruel and inhuman treatment 2. Abandonment (absence 1 full year) 3. Adultery 4. Three years consecutive imprisonment 5. Conversion |
| Conversion | 1. Separation for 1 full year (no sex with anyone) (a) result of earlier litigation for court-ordered separation; OR (b) result of separation agreement (notarized and filed, rescinded if have sex with intent to reconcile, material breach precludes conversion) 2. Divorce by court following 1 year separation |
| Dissolution action | 1. Spouse missing with no tidings 5 years (a) must make diligent search (b) publish request spouse return 3 consecutive weeks in English newspaper (c) P must have lived in NY >1 year or couple domiciled in NY at time of disappearance |
| Post-judgment alimony ("maintenance") | Not automatic right, must have need Court considers any relevant factors, including: 1. fault 2. health/age of parties 3. educational attainment, job skill 4. whether sole custodian minor child 5. duration of marriage and standard of living |
| Modification of maintenance | 1. Available upon application to court and showing of substantial change in circumstances 2. Arrears never modified; prospective only 3. Separation agreement for conversion divorce may contain alimony terms (extreme hardship to modify) |
| Termination of maintenance | 1. Court has discretion to end at any time 2. Terminates upon death of either party (a) except separation agreement may alter that 3. Terminates if recipient remarries or openly lives with another as if spouse |
| Enforcement of maintenance | 1. Can seize assets 2. Can attach wages 3. Can take away driver's license, professional license, recreational license 4. Enforcing party gets attorney's fees |
| Law of property division | Equitable Division Law |
| Steps of property division | 1. Categorize all assets and liabilities couple owns into three categories 2. Give each own property and apply equitable factors to distribute marital property items (a) do not look at marital fault (b) distribute in kind or lump sum payment (c) longer marriage, closer to 50/50 |
| Wife/husband separate property | 1. Assets owned prior to marriage 2. Gifts/inheritances received during marriage in SOLE name 3. Property parties agree to treat as separate 4. Personal injury compensation 5. Passive appreciation on separate property assets |
| Marital property | 1. Everything not separate property owned by both, acquired by either or both, regardless of title 2. Deferred compensation, including stock options, if vested 3. Professional degree or license attained during marriage, discounted to present value 4. Gifts/inheritances received during marriage jointly (including wedding gifts) 5. Appreciation on separate property assets dur to labor during marriage |
| Who is eligible to adopt in NY? | 1. 2 married adults 2. Single adult 3. Married but separated adult without spouse 4. Married minor can adopt spouse's children |
| Who can be adopted? | Any child or adult provided the purpose is to establish a bona fide parent/child relationship |
| Consent to adoption | 1. Consent from all parties (a) if minor, parents of adoptee (b) if over 14, adoptee (c) if in legal custody, legal custodian 2. OR, demonstration consent legally unnecessary of biological parents if: (a) parent surrenders child (b) parent mentally incapacitated (c) parent goes 6 months no contact (abandonment) (d) neglect (1 year insubstantial contact) |
| Steps for adoption after consent | 1. Investigate parents, religious matching 2. Child placed with adopted parents for 3-month trial period 3. Hearing and adoption |
| Removing a child | 1. Termination of parental rights in Family Court 2. Clear and convincing evidence: (a) abandonment (b) neglect (c) mental incompetence (d) parental abuse |
| Child support obligation | Every parent must support biological children through age 21 (a) extended through completion initial college degree if child has academic ability and parents have financial ability (b) step-parent charged with duty of support if child would have to resort to public assistance otherwise |
| Standard and factors for child custody | 1. Best interest of the child standard 2. NEVER consider sex of parent 3. Factors: (a) anything rational and relevant (b) preferences of family/child (if over ~12) (c) health/age parents/child (d) parents' relationships |
| Custody child testimony | Court can take testimony unsworn and in camera, but must be on record |
| Parent v. Non-parent custody | Apply best interest of child standard Presumption it is best to be reunited with biological parent (a) non-parent must show extraordinary circumstances (b) OR non-fitness of biological parent |
| Relocation of custodial parent | Court permission required Must show best interest of child |
| Visitation of non-custodial parent | Rarely if ever denied Close cases: court-ordered supervised visitation Visitation not contingent on paying child support |
| Grandparent visitation | Must establish special circumstances to overcome parent's objection under NY statute |
| Out-of-state marriages in NY | If valid where contracted, valid in NY UNLESS violates strong public policy of NY (eg, Saudi marriage to 8 year old) |
| Out-of-state divorces in NY | 1. Both spouses participated: valid in NY and cannot be collaterally attacked (res judicata) 2. Ex parte: prima facie valid in NY if process served on other spouse (a) collateral attack by proving procuring spouse no domiciliary of foreign state |
| Out-of-country divorces in NY | 1. Both spouses participated: valid (comity) 2. Ex parte: invalid |
| Support orders across state lines | 1. Uniform Interstate Family Support Act (a) permits custodial parent to send custodial support order to out-of-state employer of D (b) alternatively can send to court in that state to enforce (c) state initially issued support order has continuing jurisdiction over it 2. Full Faith and Credit for Child Support Orders Act: provides same at federal level |
| Custody orders across state lines | State has power to enter custody order if: 1. Home state of child (6 months with parent); OR 2. Was home state within 6 months and 1 parent still lives there Once state with jurisdiction enters order, has continuing and exclusive jurisdiction while any party remains connected with forum |
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