NY Domestic Relations Flashcards
UNMARRIED COUPLES
Enforceability of a Pre-Marital Agreement - the Court’s Considerations and Defenses
One Party wants to Challenge Validity of the Agrmt Ct. looks at whether:
- Agrmt must be freely made without duress
- In writing, signed by both parties (SOF)
- Cannot agree in advance to get divorced or engage in conduct that creates grounds for divorce
- Cannot be unconscionable – if contains waiver of post-divorce support not uncon. unless would likely leave party to become public charge —> Alimony Test: “fair and reasonable”
➩ Only enforceable if they get married b/c once married —> K becomes binding & subsequent divorce has NO EFFECT on the validity of the K.
Defenses to K Validty: Fraud, Duress, Unconscionability
UNMARRIED COUPLES
Enforceability of contracts between co-habitants.
- Contracts between co-habitants who have no intention of getting married are enforceable
- Ex - “should we split up, one promises to pay the other a stream of income”
- ** Exception: ** in absence of express contract, NO IMPLIED Ks between unmarried co-habitants
UNMARRIED COUPLES
Filiation Proceeding Requirements & Evidentiary Standards used.
Filitation Proceeding (only if no man acknow. paternity)
- Family Court has Exclusive Jurisdiction
- Claim brought in county where mom, alleged dad or child resides
- Claim brought by mother, child through guardian, or state (or father if mother denies paternity)
- Can be litigated @ any time prior to child’s 21st birthday
Evidentiary Points:
- C&C evidence needed
- Mother’s testimony that she had sex w/ D need not be corroborated BUT if D offers evidence of sexual access tra mother & other men, must be corroborated.
-
DNA shows greater than 95% of paternity → rebuttable presumption that D is dad, which shifts burden of proof to D (either side can offer)
- D can rebut by showing something like complete in-access (e.g. being out of the country for the entire time) but if not rebutted will give rise to liability for support of the child.
UNMARRIED COUPLES
Non-marital Children
Non-marital child – child conceived by and born to parents who never married
- If parents marry 2 years after child born, child is no longer non-marital.
- Child’s status as a marital child is unaffected by the fact that parent’s marriage is void, voidable, annulled or judicially declared void.
_Have I*dentical Rights* to marital children_ - can inherit from natural parents, can sue for wrongful death, entitled to (govt.) benefit programs, entitled to economic support from both parents
Ambiguity re Identity of Father - if married, strong presumption that mother’s husband is the father but can have filiation proceeding to determine
MARRIAGE
Duties of Marriage
1) Monogamy
2) Economic support - “fair & reasonable” standard
- Based on “Means Test” – amt based on means/resources of wealthier spouse – unless risk that spouse will become a public charge, then based on “Needs test” - based on needs of recipient spouse.
- Spouse not being supported - can seek family ct. order to enforce support reqs (no effect on validity marriage)
3) Spouses retain separate identities for civil & criminal law – liable for torts or crimes against each other, can K w/ other people w/o binding spouse, liable for own debts
Exceptions:
- Debt for necessaries – other S can be liable
- 1 Spouse Agent of other - liability for debts can attach
MARRIAGE
Requirements for valid marriage.
- Capacity – Single, opposite sex, 18 yrs. old (or 16-18 w/ parental consent)
-
Ceremonial Marriage
- License – (1) from city or town clerk, (2) wait 24 hrs., (3) license valid for 60 days, (4) pay fee, (5)
- Defects in license or failure to get a license - NO affect on validity of marriage
-
Ceremony – Solemn declaration that couple will take on status of husband & wife before an officiant & 1 witness
- Must be undertaken with general intent to undertake responsibility
- Officiant - any civil officer, physically present, authorized to administer an oath
- Contractual Marriage - cannot be in same place so get the license, & each party goes to a separate judge & signs the license, need one witness for each party.
➩ No common law marriage BUT if from another state where it’s acknowledged, **NY Will Recognize **
TERMINATION OF MARRIAGE
Void Marriage
Declaration of Nullity
-
1 person lacked severe capacity so marriage is void.
- Ex – Bigamy or Incest (1st cousins okay)
- Impediment causing marriage to be void is removed (e.g. other spouse dies) - subsequent marriage becomes voidable & thus subject to ratification.
- “Void” = no need for judicial decree b/c no marriage BUT should get a declaration of nullity anyway for clarity of record & collateral matters (distribute property, custody of kids).
TERMINATION OF MARRIAGE
Annulment - Non-Age, Mental Incapacity,
& Duress.
- Non-age – discretionary & waived if stay married & cohabitate after 18th b-day
-
Mental incapacity at time of marriage – inability to consent due to want of understanding b/c of diagnosable mental illness or developmental disability.
- Waived if continue to co-habitate after regaining capacity
- Suit may be brought by a family member or legal guardian.
-
Duress - getting married under force of physical coercion (gun-point, knife).
- Waived if gun is removed & continue to co-habit.
TERMINATION OF MARRIAGE
Voidable Marriage. 6 grounds for annulment & procedural matters.
Capacity problem at marriage, which rendered marriage voidable so marriage is valid until declaration of annulment.
6 Grounds for Annulment:
- Non-age
- Mental incapacity at time of marriage
- Duress
- Fraud
- Incurable physical incapacity
- Incurable insanity that lasts for 5 yrs. during marriage
Procedural Matters:
- Testimony by either party re: grounds for annulment requires corroboration
- Jury trial (except physical incapacity)
- Default SOL = 6 yrs.
TERMINATION OF MARRIAGE
Annulment - Incurable physical incapacity & incurable insanity.
Incurable physical incapacity – prevents sex
Must not have attempted sex before marriage
Only biological inability to have sex – NOT inability to have kids & NOT related to refusal to be intimate
Must be incurable (including transmittable disease, like HIV)
SOL - must be brought w/in 5 years of marriage
No jury trial
Incurable insanity for 5 yrs. during marriage
Mental illness develops after the marriage.
5 consecutive years or more.
3 court appointed psychiatrists must corroborate
TERMINATION OF MARRIAGE
Annulment – Fraud.
Party misrepresents or conceals info that goes to an essential aspect of the marriage prior to the marriage & it would’ve been likely to deceive reasonably prudent person.
o Religion – what religion practices, level of devotion, intent to convert, raise kids
o Procreation or sex – failure to disclose/lie about paternity of baby expecting; cannot have kids; do not want kids; sexual history, agenda or orientation
Waiver – must bring action w/in 3 yrs. of learning of the fraud
➩ Lying about economic status is NOT grounds for annulment.
TERMINATION OF MARRIAGE
Separation – Cruel & Inhuman Treatment, Imprisonment, Failure to Provide Economic Support.
Cruel and inhuman treatment (physical or mental) – must be evidence that well-being of spouse endangered rendering it unsafe or improper for P to cohabitate with D
o Subjective test – determination only relates to particular P-spouse, not “reasonable spouse”
o If P continued to cohabitate after abuse, court will consider it as a factor but it is not dispositive.
Three Years Consecutive Imprisonment During Marriage
Failure to provide economic support – if neglect or actual refusal to provide support – the separation order will contain a support clause (fault may be considered to determine award)
TERMINATION OF MARRIAGE
What is the effect of a legal separation & why would someone get one?
Ct. granted permission to live apart (so no sex obligations) & liquidates any support obligation
o Judge can give permanent or temporary order of separation
Why get separation? (*note in essay)
Financial or legal reasons – parties may want to maintain technical status b/c of social security benefits, inheritance rts, continue being a beneficiary of certain insurance plan
Religious reasons – some people will never get divorces
➩ No jury trial for separation proceedings.
TERMINATION OF MARRIAGE
Separation - Abandonment
- Abandonment – a (1) willful & voluntary departure, (2) w/o consent of the other spouse, (3) w/o intent to return, (4) w/o justification
- Conduct plus Intent - intent inferred from duration/length of absence
- Without consent or justification - to escape violence always justified
- Constructive abandonment – D walked away from marriage in metaphorical sense – e.g. refusal to have sex (but NOT refusal to have oral sex) or locks spouse out of house
TERMINATION OF MARRIAGE
Separation - Adultery -
Defenses:
- Recrimination – (dirty hands) – P spouse has also committed adultery
- Condonation – knowledge + forgiveness + cohabitation
- Connivance – form of entrapment – P procured adultery
- SOL - 5 years from discovery
- Pleading of parties must be verified, except for D-Spouse’s answer.
- Spouses can only testify on 3 subjects: (1) to prove existence of marriage, (2) D-Spouse can testify to deny the adultery, (3) P-spouse can testify to deny a defense.
- P-Spouse cannot testify to prove the adultery - need to get third party testimony or circumstantial evidence (opportunity & disposition) to prove adultery.
- Testimony of private detectives & prostitutes must be corroborated.
