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Flashcards in Domestic relations Deck (58)
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Unmarried Cohabitants - Agreements

An express agreement between unmarried persons is enforceable.
No implied contracts.


Unmarried Cohabitants - Agreements Exception

Consideration cannot be sex.


Premarital Agreements - Scope

Unlimited scope allowed.


Premarital Agreements - Formalities

1. In writing
2. signed by both
3. Acknowledged (SoF)


Premarital Agreements - What is the condition precedent?

Getting married


Premarital Agreements - How to show it is unenforceable?

1. Fraud, duress, unconscionability (when made - EXC alimony - next slide)
2. Must be voluntary and knowledgeable
3. Bargaining power:
a) legal representation
b) education
c) experience


Premarital Agreements - Requirements for Alimony Provision

1. Fair and reasonable at the time agreement was made; AND
2. Not unconscionable at the time of divorce


Non-marital Children Rights

Exact same rights as marital children under Equal Protection.


Filiation Proceeding Defined

What NY calls a paternity suit


Who can commence a filiation proceeding?

By the
1. mother
2. child through a guardian
3. state of New York
4. purported father (to assert rights as father)


What is the SoL for a filiation proceeding?

Before the child turns 21


Filiation Proceeding - Equitable Estoppel

A man who has represented himself as the father and established a paternal relationship may not deny his paternity if child has relied.
-this works both ways: if mother acquiesced to one father can't claim against another


Requirements for marriage

1. License
2. Ceremony


Marriage Ceremony Defined

A solemn DECLARATION by the couple in front of an OFFICIANT and a WITNESS.
"Declaration" - undertake to enter seriously into status.
"Officiant" - member of clergy / civil officer who can administer oath / captain


Marriage Ceremony - Prescribed Words

There are none.


Common Law Marriage

Not available in NY


Will NY recognize another state's common law marriage?

Yes. "Portable"


NY Matrimonial Causes of Action

1. Declaration of nullity
2. Annulment
3. Legal separation
4. Divorce


NY Nullity Grounds

Lack of capacity to marry - bigamy or incest.
(Cousins OK - "that explains half the people you see on the subway")
Renders marriage void. No need for official process.


NY Annulment Grounds

1. One party was under 18
2. Mental incapacity
3. Duress
4. Fraud
5. Physical incapacity to have sex (not psych) (SoL - 5y after marriage)
6. 5 years of incurable insanity arising AFTER the marriage.


NY Annulment - Waiver

If you continue to cohabitate after the defect then you waive the right to annulment.


Annulment Grounds - Fraud

Misrepresentation or concealment of information that goes to an essential aspect of the marriage by one party prior to the marriage (SoL - 3y after learning).
- religion
- fertility
- sexual history
- sexual proclivities
(not money or property)


Legal Separation - 5 Grounds

1. Cruel & inhuman treatment
2. Abandonment (no SoL)
3. Adultery
4. 3 years of consecutive imprisonment
5. Failure to support


Legal Separation - Elements of Abandonment

1. 1 spouse leaves
2. without consent of the other
3. without a valid justification
4. and without the intent to return
"Contructive abandonment" even if he is home!


Affirmative Defenses to Adultery

1. Condonation (waiver)
2. Connivance (hiring a prostitute to entrap the guy)
3. Recrimination (dirty hands - you also cheated)
4. Statute of Limitations - 5 years after discovery


Divorce - Grounds

1. No fault; or
2. Fault
i. cruel and inhuman treatment
ii. abandonment for 1 year
iii. Adultery
iv. 3 years of continuous imprisonment
v. conversion (live apart for a year, then convert into divorce)


No fault divorce - requirements

Marriage has broken down for
1. 6 months; and
2. 1 party has stated so under oath.
Effective after all collateral issues are resolved.


Dissolution - Grounds

Spouse missing "without tidings" for 5y.
1. Demonstrate diligent search
2. Publish newspaper request
3. P lived in NY for 1y or NY was matrimonial domicile at time of disappearance.
Presumed dead! Therefore no collateral issues.


Maintenance (Alimony) Support Factors

Just use the facts suggested in the question.
Law has 19 factors - health, age, education, housewife, etc
Adultery and violence can affect.


Counsel fees for poorer spouse?

Rebuttable presumption.