 | Term | Definition |
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Unmarried co-habitants - Agreement for one party to pay the other lump sum on break up |
WAS: Against public policy; TODAY: Enforceable K – Consideration for household labor in return for economic consideration on event of break up. Not for sex - Prostitution is illegal. K – Consideration for household labor in return for economic consideration on event of break up. We will not imply a K between them – won't treat them as if married. |
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Not married – engaged Prenup |
Entering K – has a little more formal recognition: Antinuptial, Prenuptial, premarital agreement. Prenup typically - economic matters in event that marriage fails. Can include: estate planning; any topic that they care about. |
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Validity of prenup |
ANALYSIS: Can an attack be sustained? Four things to look for: 1) No duress – must show freely made; 2) Must be in writing, signed by both parties and acknowledged (Notarized) – SOF; 3) CANNOT promise in advance to secure a divorce or promise to engage in behavior that would bring about a divorce; 4) Agreement cannot be unconscionable = shocks the conscious - Full out waiver of all support NOT necessarily (Fairly bright line rule: Economically beleaguered spouse would likely become a public charge is unconscionable) |
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Child born to unmarried woman, any child born to parents who never married |
nonmarital children: 1) CON PROHIBITION: discrimination against nonmarital children - Treated largely the same as marital children; 2) DIFFERENCE: ascertaining father: a) Marital child – Presumption: mother's husband is father; a) Nonmarital – may have to litigate |
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**NY: Filiation proceeding |
brought in family court by MOM or CHILD acting through guardian or by STATE OF NY or PUTATIVE FATHER (not as often). File before age 21. Three issues on proceeding: 1) STANDARD OF PROOF: CCE; 2) Mother's claim of sexual access by D need not be corroborated - MUST corroborate: any evidence that she had sex w/ other men; 3) Essentially mechanical now – DNA admissible → >95% probability of father – burden goes to D to negate. After litigation – D father → He pays child support. |
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Gifts given in contemplation of marriage for engaged couple |
Couple gives each other gifts – you can get it back if the gift was given in contemplation of marriage → Look at the nature of the gift: Engagement ring – get back; Sweater for Christmas – not get back. |
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Obsolete law – 5 Heart balm actions – all been abolished |
NY examiners tend to test on them in multiple choice – answer is that you can't bring the claim: 1) Breach of promise to marry; 2) Seduction of an unmarried female – father had the cause of action; 3) Alienation of affections – brought by married person against a third person for convincing your spouse to hate you; 4) Criminal conversation – having an affair; 5) Jactitation of marriage – claiming to be married to someone you aren't married to. |
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What you need to get married |
You need all the capacities that would be necessary to enter an ordinary commercial K: 1) Sound MIND; 2) Suitable age. |
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Gay marriage |
NY State does not say that you have to be man and woman to marry. C of A: based on the context of domestic relations code that leg contemplated one man and one woman until leg amends. TODAY: Can't marry - Con challenge: C of A sustained constitutionality. Marrying in another state: Mass., CA, Canada→ Appellate division – FFC to those out of state same sex relationships. Governor's Order instructing state agencies to recognize – interaction, you will be treated as married. |
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How to get married |
Ceremonial marriage is principal way: 1) License; 2) Ceremony; 3) K marriage |
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Marriage License |
1) Go to clerk; 2) 24 hr waiting period; 3) Expire in 60 days; 4) Failure to get does not affect validity of the marriage – directory requirement, not obligatory as a condition of the marriage |
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Marriage Ceremony |
engage solemn or serious promises to take on their new status as spouses in front of: A) Officiant – member of clergy, civil universe empowered to administer an oath, ship captain; B) Witness – 2 Ws by custom, best man and maid of honor. |
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contractual marriage |
allows parties to get married in separate places. Each party goes before a judge and signs w/ witness. NO recognition of common law marriage – Gives FFC to OOS Common Law marriages. |
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Termination of a marriage |
Five types of actions: 1) Declaration of nullity; 2) Lawsuit for annulment; 3) Legal separation; 4) Divorce; 5) Dissolution |
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Declaration of nullity |
1 party lacked legal capacity to marry and problem so severe that it makes the marriage utterly void. TWO capacity problems: A) Bigamy – already married, you can't marry other people → Marriage is void (Non-waivable); B) Incest – Forbidden blood relationship: ancestors, descendents, lineal relatives on your generation, or up/down one (Parent, great-grand, grand – parent, child, grandchild, great-grandchild, Lineals: sibling, aunt, nephew); First cousins can marry; relation by marriage can marry. COURT: declaration of nullity – don't need, just for the record. Also a crime. |
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lawsuit for annulment |
capacity problem, less severe → only voidable. Stay married until annulled, waive by not acting promptly. Grounds: 1) Age – too young; 2) Mentally incapacitated at the time of marriage; 3) Five years incurable insanity; 4) Duress; 5) fraud; 6) Physical incapacity (for sex). |
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Age annulment |
Not automatic, in discretion of the court: For <18 yo → 1) 16 or 17 – you can get married w/ parental consent; 2) >14 – 16 – consent of parents + consent of a judge; 3) <14 – No marriage; 4) Incapacity gone when you reach 18 → Waived. Mentally incapacity at the time of the marriage { You need to make KNOWING AND UNDERSTANDING exchange of promises to enter marriage. Could be mental illness or disability. Incapacitated unlikely to be able to litigate – normally claim brought by guardian, likely adult children. Mentally incapacity is eliminated – becomes lucid, continues to co-habit → ground waived. |
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Five years incurable insanity after marriage |
parties of sound mind when they married. MUST HAVE: medical testimony that there is NO prospect of a cure. Can't be waived – by definition, incurable. |
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Duress |
Shotgun wedding, incapacity, not free entry. Waived - freely cohabit after duress removed and you remain in marriage. |
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Fraud |
If prior to the marriage one party misrepresents or conceals info that goes to a VITAL AND ESSENTIAL ASPECT of the marriage, and that is calculated to deceive a reasonably prudent person, the deceived party has grounds for an annulment. NEEDS: <<Intentional and material>> big and deliberate lie or secret. EX: Marries – she discovers he was a Nazi, court granted the annulment. Fact patterns where there is precedent: 1) Fraud relating to religion; 2) Fraud relating to procreation or sex. NOT MATERIAL: Lying about money, finances, position. Requirements: A) Testimony by either party alone is not sufficient – you need corroborating testimony; B) All tried to a jury except Physical incapacity; C) 6 year SOL – but you can have waiver before then. |
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Fraud relating to religion |
Lie about your religion; level of observance; intentions about upbringing of children |
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Relating to procreation or sex |
Procreation – lie about your inability to have children; carrier of serious medical problem; lie about paternity of baby; family size (distinguish lie from change of heart). Sex: Sexual history in a big way (like used to be a prostitute); sexual preferences (BDSM type stuff - waivable) |
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physical incapacity |
incurable physical condition that makes it impossible to have safe and normal sexual intercourse. NOT procreative ability – ability to have sex. Requirements: MUST BE incurable; Mechanical issue – not about affection; Must be w/n five years. No jury trial – too embarrassing. |
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Legal separation |
one spouse sues the other and asks for; a) judicial permission to live separate and apart; PLUS b) and some sort of collateral remedy. Leaves parties married – does not terminate the marriage. NO JURY: Action is tried to the court. Temporary or permanent separation. Grounds: 1) Cruel and inhuman treatment; 2) Abandonment; 3) adultery; 4) ≥3 years of consecutive imprisonment; ) Failure to support – Get separation + support |
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Cruel and inhuman treatment |
For divorce and separation. SINGLE ground encompasses mental cruelty and domestic violence. SUBSIDIARY STANDARD: Subjective test - Cruelty must endanger the well-being of the P, and render it unsafe or improper for the P to continue to cohabit. NY emergency orders of protection - WAS: only spouses, ex-spouses and parent of child, just signed a bill changing that; TODAY: anyone with whom you have had an intimate relationship. |
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Abandonment |
requires: I) Voluntary departure by one spouse from the other - Physical or constructive; II) W/o consent of the other spouse; III) W/o justification - Escaping violence, ALWAYS justified; IV) Evidence of no intent to return. Unconventional sex desires – not abandonment if you won't have sex. NO SOL. |
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Adultery |
act of sex or deviant sex voluntary performed w/ someone other than your spouse while you were married. Special defenses for alleged adulterer: I) recrimination – dirty hands, D shows off-setting misconduct (Many states have abolished); II) Condonation – a form of waiver, evidence P spouse learned of adultery and freely resumed cohabitation (Form of forgiveness); III) Connivance – form of entrapment, D spouse says you induced them to engage in behavior. SOL – W/n five years of date of discovery. |
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What can spouses testify to in Divorce/Separation Limit on what spouses can testify to |
only testify: I) To prove they are married; II) To negate or disprove adultery; III) To deny or disprove defenses <<Proof of the adultery as to come from 3 P testimony or circumstantial evidence = opportunity + disposition>> (Opp usually = business trip/Disposition = Love notes, exchange of gifts); IV) ≥3 years of consecutive imprisonment; V) Failure to support – Get separation + support |
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Divorce |
NY does not have no fault divorce. Need grounds, and all involve fault of some kind. Five grounds – 1st four are identical to sep: I) Cruel or inhuman treatment; II) Abandonment – Need ≥1 year; III) Adultery; IV) ≥3 yrs. consecutive imprisonment; V) Conversion divorce: A) Must voluntarily separate either through mutual agreement – K; OR B) Separate pursuant to legal separation – Litigate → Then they must live separate and apart for ≥1 year, converts separation into a divorce. Requires fault OR mutual consent. |
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Separation agreement |
It is a K: A) Has to be written; B) Freely made – No duress or undue influence; C) Acknowledged; D) Must file with the court at some point before you go for conversion. Can be rescinded by the act of the parties: A) SEX during one year period w/ the intent to reconcile: 1) Resets clock to zero; 2) Physically motivated sex is ok – Not a rescission of the agreement; 3) Does not affect court-ordered separation; B) Material breach of any provision precludes getting conversion divorce |
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Dissolution action |
when your spouse has disappeared, ask court to say dead. REQUIRES: evidence Spouse has been missing w/o any tidings for 5 yrs. Requirements: A) Testify that you have made a diligent search for your spouse; B) Publish a request that your spouse return for 3 weeks in an English language newspaper; C) Must be NY residence for ≥1 year when bringing action; NY has to be Domicile at time of disappearance. No alimony; property division; no custody. |
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Procedural issues for matrimonial actions - SMJ |
ALL in NYSC. For SMJ – ONE spouse must be domiciled in NY, AND residency requirements satisfied by domiciled spouse – three ways: 1) Both parties reside in NY AND grounds occurred in NY, no min residency requirement → Immediate access to NY courts; 2) Only one party live here: AND A) They ever lived here as spouses; B) they married here; or C) The grounds occurred here; 3) One party living here - need 2 years of residence |
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Jurisdiction to enter collateral orders |
Need PJ over D spouse for alimony or child support orders |
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Matrimonial action Pleadings |
1) All pleadings in matrimonial actions must be verified EXCEPT in cases alleging adultery; 2) Process must be personally served unless you get court permission; 3) No default judgments w/o submissions of truth; 4) Must make financial disclosures – records will be kept confidential for 100 years |
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Professional responsibility issues |
Lawyer must give 3 docs: 1) Statement of client rights and responsibilities; 2) Written retainer agreement; 3) Provide closing at end. MAY NOT take mortgage on house as security. Disciplinary rule – Shall not begin sexual relations w/ client during the course of the lawyer's representation of the client. |
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Maintenance |
alimony. Temporary while matrimonial action pending – entitled to seek. Court exercises discretion considering relevant factors: Looks at NEEDS of P. Commonly used factors: 1) Health and age – elderly, infirm, chronic ailment, mental illness; 2) Earning capacities – education, earner; 3) Minor children – implicates ability to work full time; 4) Duration of marriage and standard of living enjoyed during the marriage; 5) Fault – DV, faith, cruelty, abandonment. Separation agreement – court engages in close scrutiny of that agreement if there is any evidence of overreaching → Parties have decided what is appropriate. |
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Continuing obligation |
usually payment/mo. Three things to think about: 1) modification – Go back to court and show a substantial change in circumstances: a) Like getting laid off; b) Separation agreement – does not provide for modification: show extreme hardship; c) Prospective only – no modifying past due payments, apply promptly; 2) Termination - Court can say lasts forever, BUT automatic termination on death of either party → You can K around that in the separation agreement. Ends with remarriage or cohabitation. 3) Enforcement |
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Dividing the property |
NY: equitable distribution state. Two step analysis: 1) Look at all assets and divide up: A) Personal property; B) Real estate; C) Financial assets; D) Business; 2) Divide into three piles: H's separate property; W's separate property; Marital assets subject to distribution - THEN: Divide or distribute. H and W keep theirs – marital assets distributed in court's discretion through application of various factors. |
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Separate asset for division of property |
1) Anything you own prior to the wedding; 2) Any gift or inheritance after wedding in your sole name (Marital booty is for both – even stuff from prior to wedding); 3) Property that spouses agree to treat as separate property; 4) Personal injury compensation – designed to make you whole; 5) Passive appreciation in value on items in 1-4 due merely to passage of time and appreciation; Active participation or effort is marital; You can have hybrid. |
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Marital property |
Anything acquired during pendency of marriage and is still there to be accounted for is all marital property regardless of how the assets may be titled. EVERYTHING – 401k; pension plans; stock options; gifts; lotto winnings; license or degree that may have been acquired during the marriage. |
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Incorporating degree into marital property |
You assign value to the degree - Like everything else is $500,000 and JD = $500,000 = You keep your degree, other party gets the rest. Avoid double counting << For division you can consider ANY relevant factor EXCEPT FAULT – don't consider fault >> |
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Distribution of property |
Can order distribution in kind or lump sum = distributive award. Longer marriage – goes toward 50/50 distribution, entirely discretionary. Two options: 1) Write a check now; 2) Can go through assets and tell to deed over certain assets. |
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Artificial insemination |
child considered to be a marital child. Anonymous donor – sperm donor has no relationship to the child, provided husband consents, child is treated as biological offspring. |
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Surrogate |
w/ 3rd p W – Illegal in NY. void by statute, form of baby selling repugnant. |
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Adoption |
Most common. ANYONE can adopt provided you obtain all necessary consents and are attempting to establish a true parent-child relationship: 1) Married can adopt as co-petitioners; 2) In NY – single person can adopt; 3) Gay couple trying to adopt each other – impermissible → not true relationship. Investigate prospective adoptive parents - Interviewed; Fill out questionnaire; Home visit; Effort in NY to engage in religious matching; Trial period – then decision to establish parent-child relationship |
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Consents for adoption |
1) Minor child adoptee - Both biological parents must consent; 2) Adoptee >14 yrs - Need consent of adoptee; 3) Any other party has legal custody - That person has to consent. |
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PARENTS' right to w/o consent lost |
four ways: A) Parent has surrendered child – putting up for adoption; B) Mentally incapacitated and unable to care for child – would be an empty gesture, you don't have the capacity to consent; C) If you have abandoned = ≥6 mos. w/ no contact w/ child <<Common fact pattern: Non-marital child from 1 night stand, father is abandoned parent>>; D) Parent is guilty of neglect = Conduct that poses an imminent danger to the child: 1) Near or impending harm falling below minimum care of reasonable parent ; 2) Neglect continues for 1 year |
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Supporting children |
Required from BOTH biological parents through age 21 in NY: 1) Doesn't matter whether parents married, divorced, living together; 2) You can be ordered to continue to support your child past 21 if child is attending college. Generally: child is being supported if living w/ parent. Others who may be liable: 1) C of A holding: doctrine of equitable estoppel as a parent; 2) Non-custodial parent |
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C of A holding: doctrine of equitable estoppel as a parent |
if acting as parent, and child as come to rely on your support, you can be estopped from denying support. Lower court applications: 1) Non-anonymous sperm donation case – equitably estopped from denying paternity; 2) Step-parent – NY statute says step-parent has duty to support a child in that same household if absent support the child would have to go on public assistance. |
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Non-custodial party who owes support |
actual amount of support determined by guidelines. Has a table – looks to parental income, # of children, certain deductions for insurance, property distribution issues → Can depart, but has to state reasons on record |
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Three follow on issues for child support |
1) Modification - Petition and show change of circumstance <<increased income = increased support>> Child is entitled to share in parent's good fortune; 2) Termination - Only when child reaches age of majority or if someone dies; 3) Enforcement |
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Enforcement of child support |
1) Attach property and sell; Wage reduction order and take money; Hold in contempt of court; 2) You can file order w/ IRS – they will intercept refund; 3) Out of state - Uniform statute remedies problem – Uniform Interstate Family Support Act (UIFSA) <<Adopted in every American jurisdiction>> Two things: A) Prevents inconsistent orders- continuing and exclusive J, other states defer; 2) provides for interstate direct enforceability of order – mail to out of state court and they will enforce → Mail to OOS employer and employer obligated to garnish wages |
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Custody |
BEST INTEREST OF THE CHILD (BIC) – Universally applicable. Application <<NO gender bias>> Look at: 1) preferences of the parties – don't put w/ parent who doesn't want; 2) child >12: child's wishes; 3) Age and health of all parties concerned and considered interactively; 4) Was one parent primary care-giver; 5) DV by either party; 6) Either party in new relationship – what we know about that person; 7) Extended family issues – Relationships with them; 8) Any other common sense considerations. Judge CAN talk to child - in camara, must have a record so that the appellate court can meaningfully review. |
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Visitation |
Non-custodial parent gets visitation – ALMOST NEVER denied: 1) Crucial and fundamental RIGHT of the parent; 2) ONLY lose when pose a direct threat to the health of the kid; 3) NOT contingent on paying child support <<Custodial parent interferes with visitation can = contempt of court>> |
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Custody Contests btn parent and non-parent |
1) Non-parent contesting: non-parent or parent is still going to litigate on the best interest of the child; 2) Presumption: Best interest is w/ parent; 3) Non-parent show: extraordinary circumstances or parental unfitness |
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Visitation requests by non-parents |
NY has grandparental visitation statute. SCT: Parents have right to make decision about how children raised – Due process → Co of A: statute requires special weight to wishes of parents. Non-parents: satisfy burden to show SPECIAL CIRCUMSTANCES. |
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CONFLICTS |
NY: marriage valid where contracted is valid here. Very narrow exception for violation of affirmative prohibitive law of NY. |
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DIVORCE: Out of state NY |
1) Another J – Bi-lateral J, they both participated → NY gives FFC, no collateral attack allows; 2) Ex parte out of state divorce: prima facie valid, can be collaterally attacked by non-participating spouse w/ evidence that participating spouse was not domiciled in the forum; 3) Out of country divorce: normally acknowledged under the doctrine of commity provided both parties participated and provided the divorce was legal under the laws of the country; 4) Ex parte out of country divorce is not given any recognition in NY. |
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Out of state child custody orders |
Uniform statute – Uniform Child Custody Jurisdiction and enforcement act (UCCJEA). Almost the same lines as UIFSA. 1) If initial custody order was entered by a state w/ J – continuing exclusive J so long as parent or child continued to live in that case; 2) CEJ – all other states must honor the custody order and refrain from entering conflicting orders; 3) Proper J if homes state of child = State were child lived with parent for six mos. prior to order being entered. |
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Federal statutes on child custody |
FFC for Child Support Orders Act – Requires FFC for previously entered Child support orders. Similar to UIFSA. Parental Kidnapping Protection Act (PKPA). |
