Flashcards in Domestic relations Deck (58)
Based on substantial change of circumstances.
Only prospetive change. Arrears payments not modifiable.
Maintenance Modification based on Separation Agreement
Maintenance - Automatic termination events
1. Death of either party
2. Remarriage or cohabitation of receiving party
(unless agreement states otherwise)
NY is "Equitable Distribution" state - 2 Step Process
1. Categorize all assets
2. Distribute assets
Equitable Distribution - Categories of Property
1. Husband's separate property
2. Wife's separate property
3. Marital property
(On exam - arrange in 3 columns)
What can be separate property?
1. Property owned by the spouse prior to the marriage
2. Gift or inheritance in their sole name received after marriage
3. Property agreed to be separate
4. Personal injury compensation for pain and suffering
5. Any appreciation in value in other non-marital property (except due to spouse's effort)
Everything else is marital asset by default
How to distribute marital property?
Loss of insurance or inheritance rights after divorce.
Need for home to raise kids
(Marital fault - NOT factor!)
Termination of Parental Rights - What Court?
Termination of Parental Rights - Standard of Proof?
Clear and convincing evidence
Termination of Parental Rights - Right to counsel?
Yes, one will be appointed if poor.
Termination of Parental Rights - Grounds?
1. Abandonment of 6 months w/ intent
2. Permanent neglect
4. Mental illness of developmental disability
5. Murder of the child's sibling
Who can adopt?
1. Married couple
2. Single adult
3. Two unmarried parties in an intimate relationship
Who can be adopted?
Anyone - child or adult
Consents necessary for adoption
Under 14: Both biological parents unless they voluntarily surrendered kid to authorities, OR legal custodian.
14+: Adoptee consent.
Child Support - General Rule
Both parents must support child up until 21, or through college with special circumstances.
Child Support - When can it be modified?
Change in income of 15%
Child Custody - Uniform Child Custody law
A state has jurisdiction to enter a preliminary custody order if it is currently the home state of the child or was the home state within the last 6 months.
Child Custody - What is a "home state"?
Where the child lived with a parent for 6 months.
Child Custody - Judicial Standard for determining custody
"Best interests of the child."
Child Custody - Determining Factors
1. Mental and physical health of parents
2. History of violence
3. New companions
4. If over 12, child's preferences
5. Keeping siblings together
Child Custody - Parent v. non-parent
Still BIC standard, but presumption of preference with parent.
Grandparental Visitation Rights
Parent has due process rights to raise child how he/she wants.
Petitioning grandparent must show special circumstances of a SUBSTANTIAL STATE INTEREST in allowing visitation.
OOS or Non-U.S. Marriage
If valid where contracted then valid here; UNLESS
it violates a strong public policy of NY.
OOS Divorce - valid?
Yes, res judicata.
Including alimony, property, possession division.
Foreign - comity rule.
OOS Ex parte divorce - valid?
If spouse received notice.
Foreign divorce ex parte - valid?
Which state has jurisdiction on support?
State that issued first order has "continuing and exclusive jurisdiction" as long as parent or kid still lives there.