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Flashcards in Bar Prep - Domestic Relations Deck (97)

What is the rule regarding the enforceability of contracts between unmarried cohabitants?

An express agreement that would regulate H and W's economic affairs after they break up is ENFORCEABLE.


What is equitable estoppel regarding paternity?

Man who has erroneously represented himself as child's father can be estopped (prevented) from denying paternity if the child has justifiably relied on paternity representation to child's detriment.


True or False: NY will imply a contract between unmarried cohabitants if the couple did not entered into a bargain.

FALSE. NY will not imply.


What are key points to discuss potential challenge to agreements between unmarried cohabitants?

(1) Agreement must be in writing, signed by both and acknowledge.

(2) Couple actually gets married

(3) Contract not made under fraud, duress or unconscionability.


What is the exception to the general rule that agreements between unmarried cohabitants are enforceable?

Only enforceable if the consideration is something OTHER THAN sex.


What are key factors to look for in analyzing whether a contract between unmarried cohabitants is unconscionable?

Whether each party had ind counsel, business experience, knew effects of waiver.


What are the rights of children born to unmarried cohabitants?

Non-marital children are entitled to the same protections under the law as children born into marriage


What is a filiation proceeding?

Paternity suit.


What are the requirements of marriage process?

(1) License
(2) Ceremony


What are the requirements of a marriage ceremony?

(i) Officiant
(ii) Witness
(iii) Exchange of promises (solemn declaration)

Official definition -- solemn declaration before an officiant and a witness


True or False: There is common law marriage in NY.

FALSE - it was abolished.

If a couple enters in a valid common law marriage in a state where its permissible and they relocate in NY - treated as married.


What are the 5 matrimonial causes of action for the termination of marriage

(1) Declaration of nullity
(2) Nullity
(3) Legal Separation
(4) Divorce
(5) Dissolution


True or false: there is a prescribed language for matrimonial ceremony.

NO - you can write your own vows.


What is a declaration of nullity?

Couple lacked capacity to marry AND incapacity renders their marriage VOID.


True or False: Litigation to end a marriage is brought in State Supreme Court (not family court).



What are common grounds for declaration of nullity?

(1) Bigamy
(2) Incest


What is annulment?

Used when there is capacity issue that renders marriage voidable.


True or False: grounds for annulment are waivable through cohabitation.



What are the grounds for annulment?

(1) Nonage
(2) Mental incapacity at time of marriage
(3) Duress
(4) Fraud
(5) Physical incapacity


True or False: if you are 16 or 17 you can get married with consent of your mother.

FALSE - you need the consent of BOTH PARENTS.


True or False: if you are 14 or 15 you can get married with approval of both parents and judicial consent.


Person under 14 NEVER has legal capacity to get married.


What is the rule regarding annulment and mental incapacity at time of marriage?

Mental illness or developmental disability

This ground can be waived if you continue to cohabit after the person becomes lucid.


What is the rule regarding annulment and duress?

Marriage can be annulled under threat of force.

This ground for annulment is waivable through cohabitation after physical threat is removed.


What is the rule regarding annulment and fraud?

The misrepresentation or the concealment of information by a fiance prior to the marriage that goes to a vital or essential aspect of that marriage.


When is an annulment on the ground of fraud waivable?

Cohabitation after learning about the truth of the misrepresentation or concealment.


True or False: regarding an annulment for fraud, misrepresentation must go to an essential aspect of the marriage?



Does fraud going to religion go to essential aspect of marriage?

YES - this would be a ground for annulment.

If not waived.


Does fraud with regard to ability to child or probably of birth defects, is this grounds for annulment?

Lying about ability to have kids = fraud and can be a ground for annulment.


Is money, property or social status grounds for annulment based on fraud?

No - not sufficient for an annulment.


What is the rule regarding the physical incapacity grounds for an annulment?

An incurable physical condition that prevents safe and normal sexual intercourse is grounds for annulment.

Must be brought within 5 years of marriage.


What is legal separation?

Allows you to live separate and apart with court permission. Leaves the marriage intact.


What is the rule regarding annulment and 5 years of incurable insanity?

Spouse was sane at time of marriage, other spouse waits 5 years and then you can get annulment.

Requires 3 different court appointed physicians to testify and agree.


Why do couples opt for legal separation.

Keeps marriage intact.

(i) pragmatic reasons -- preserve marital status for health insurance or tax benefits
(ii) religious or physical


What is the point of legal separation?

Determine and economic and custody issues when spouses move into separate homes

No jury trial.


What are the grounds for legal separation in NY?

(1) Cruel and inhumane treatment
(2) Abandonment
(3) Adultery
(4) 3 years consecutive imprisonment
(5) Failure to support spouse


What is the definition of cruel and inhumane treatment (ground for legal separation)?

Physical and mental abuse; endangers well-being of innocent spouse and makes it unsafe or improper for continued cohabitation.


What is the definition of abandonment (ground for legal separation)?


(1) D spouse to voluntary depart from marriage
(2) Without consent of other spouse
(3) Departure is unjustified, and
(4) No intent to return


What is the definition of adultery (grounds for legal separation)?

Act of sex or deviant sex voluntary performed with another person who is not your spouse during marriage


What are the defenses to adultery?

(i) Redrimination
(ii) Condonation
(iii) Conviance
(iv) 5 years SOL


What is constructive abandonment?

Abandonment of marriage without leaving home. (ex - permanent denial of sex or silent treatment).


What is condonation?

Defense of adultery = Waiver, After learning of adultery you freely assume cohabitation.


What is conivance?

Defense of adultery = entrapment. when other spouse is lured into committing adultery.


What is recrimination?

Dirty hands, the other spouse has also committed adultery.


What is the SOL for adultery ground for legal separation?

5 years.


True or False: Failure to make financial provisions for spouse is not a ground for divorce.

True - though it is grounds for legal separation.


What is NY rule regarding divorce.

Hybrid grounds - both fault and no fault grounds for divorce can be valid.


What are the grounds for divorce in NY?

(1) Cruel and inhumane treatment
(2) Abandonment (one year continuous period)
(3) Adultery
(4) Three years imprisonment
(5) Conversion
(6) Irretrievable Breakdown of Marriage (no fault)


True or False: Abandonment must be for full one year before you have grounds for divorce



What is conversion divorce?

(1) Separation
(2) Then court converts separation into a divorce.


What is a recession of separation agreement?

Cohabitation with intent to reconcile.

This will restart the 1-year clock if you want a conversion divorce.


What is an irretrievable breakdown of marriage (no fault divorce)?

Lasts at least 6 months; one party must testify under oath.


"The relationship btw H and W have broken down, is irretrievable for at least 6 months, provided that one party has so stated under oath." This language represents ___?

Statutory language for Irretrievable Breakdown of Marriage.

Ground = fact that marriage is broken, broken for 6 months, provided one party testifies to that under oath.

Basically, all that is essential is spouse testimony.


What is dissolution?

When one spouse has vanished.

Requires proof that the spouse has been missing without any tidings for 5 years.


What are the requirements for dissolution?

(1) Diligent search

(2) Publish request that spouse return for 3 consecutive weeks in an English language paper

(3) P must have lived in NY for 1 year or NY must have been the place of matrimony domicile at the time of disappearance.


True or False: Under a dissolution cause of action, no collateral issues are adjudicated.


No property division, alimony or child custody.


What is the rule regarding automatic orders in a matrimonial lawsuit?

Forbid sale of assets, concealment of assets, change of insurance coverage, unusual debts


True or False: During matrimonial action, spouse is obligated to make full disclosure of assets and file tax returns with court.



What is maintenance?

AKA Alimony. Support payments (either temporary or post judgment).


What are temporary maintenance awards?

Generally award to provide for a spouse during the pendency of an action.

Statute provides a formula to determine the presumptive award.

Action -- file case and ask for temporary maintenance.


What is post judgment maintenance?

awarded upon showing of a need by applicant. Court can consider any factor it considers just and proper.


What are some factors to consider for post judgment maintenance?


Health and age of spouses; earning capacity; property of spouses


What is required for modification of post judgment maintenance?

Requires evidence of a substantial change in circumstances.

Can't modify past due payments.


What are three considerations for continuing obligations?

Modification, Termination and Enforcement?


What is required for termination of post judgment maintenance?

Terminate on death of either party. Can contract around this. Remarriage of recipient, or lives with another person as if married.


What is required for enforcement of post judgment maintenance?

Can seize property, enter wage reduction order, take away drivers license, take away professional license, or send to jail.


What is the rule regarding property division in NY during divorce?



What is equitable distribution?

During divorce, marital property is divided equally.


Death, Remarriage or Cohabitation does what to post judgment maintenance awards?

Automatic termination.


What is the two step process for equitable distribution question?

Step 1 --> Categorize assets

Step 2 --> Distribute the assets


What are the three categories for property in equitable distribution?

(a) H separate property
(b) W separate property
(c) Marital property


True or false: any asset owned by h or w prior to marriage is considered separate property.



True or False: any bequest or gift received AFTER the marriage by one spouse in their SOLE NAME is considered separate property.



True or False: The spouses can agree to treat property as separate property.

True - if spouses agree, the property is considered separate.


True or False: Personal injury compensation is considered separate property.



What is the rule regarding the APPRECIATION OF VALUE in separate property categories during equitable distribution?

Appreciation in value is separate property UNLESS the appreciation is the spouse's active effort.


What is the rule regarding publicly traded stock during equitable distribution?

Appreciation in value is based on MARKET FORCES, therefore the entire property is separate property.


What is the rule regarding small business value during equitable distribution?

If one spouse owns the small business before the marriage, and the other spouse works in the small business and through that work it appreciates in value, THE APPRECIATION VALUE of the small business is a marital asset.


True or False: staying at home and managing the household while the other spouse manages the business = active participation in the small business?

True - it liberated the other party to work and increase value.


What is the rule regarding gifts given to couple jointly during equitable distribution?

marital asset - including wedding gifts.


What is the rule regarding property acquired during marriage (even if one spouse sole name) during equitable distribution?

Marital asset.


True or false: anything acquired during pendency of marriage is a marital asset.



What are three factors uniquely relevant to marital property division?

(i) Loss of health insurance upon dissolution
(ii) Loss of inheritance rights upon dissolution
(iii) Custodian of children's need to occupy marital home.


If during course of marriage, one spouse earned a professional degree or professional license, is this a marital asset?



What occurs with the termination of parental rights?

Severs bond between the biological parent and the child. Allows the child to be adopted.


True or False: Marital fault is a factor in making property division award.



What is require in Ps complaint for a divorce action?

P must plead nature of circumstances of D spouse misconduct AND the time and place of each act complained of specifically.


What is the definition of cruel an I humane treatment in NY?

Conduct by D spouse that so endangers the physical or mental well being if P spouse as to render it unsafe for P spouse to continue to cohabitate with D.


If W's complaint alleges "specific incidents" of physical abuse, is this sufficient to demonstrate whether cruel and inhumane treatment is evidenced?


In NY, standard for evidencing cruel and inhumane treatment = serious misconduct.

(Vs. minor incident)


Is cohabitation a defense to divorce action for cruel and inhumane treatment?



What is condition and is it available in divorce action for cruel and inhumane treatment?

Condonation = waiver, after learning of adultery spouse freely assumes cohabitation.

This defense is NOT available in divorce action for cruel and inhumane treatment ONLY adultery.


Web discussing equitable distribution, what rules should ou hit every time?

1. In NY, division of property dying divorce action is governed by equitable distribution, under domestic relations law.

2. Equitable distribution requires marital property to be divided equally between parties in consideration of the circumstances.

3. Marital property is defined as all property acquired during marriage by either or both spouses BEFORE execution of separation agreement or commencement of marital action.

Then cite exceptions of separate property.


When does a court have jurisdiction to award divorce?

The state where EITHER party to marriage is domiciled has, by virtue of domicile, power to grant judgment of divorce.


What is the effect of the doctrine of "divisible incidents of divorce?"

Personal rights, such as right to support, are personal to each party and cannot be affected unless the court had jurisdiction over THE PERSON entitled to support.


True or false: a separation agreement is presumed to be incorporated and survive a divorce decree unless the agreement SPECIFICALLY directs a merging.


"Incorporated and survives" -- means the agmt can stand by itself notwithstanding that it is read with the divorce decree.


What is the rule regarding the annulment or modification if maintenance agmts?

Domestic relations law states that if a party is habitually living with another person and holding themselves out as H and W, the court may annul or modify support provisions.


Is adultery enough to modify a support provision?

No. W needs to hold herself out as couple with 3P. (H and W - living together)


Is spouse entitled to counsel fees in action to compel payment under matrimonial judgment?

Under DRL, counsel fees may be awarded in action to compel payment under any sum of money required to be paid by matrimonial judgment.