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Flashcards in Domestic Relations Deck (29)
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Agreements Between Unmarried Couples


  • Express agreements between unmarried couples are enforceable. 
    • Ex. If we split up, H will pay W $1,000 per month for three years in exchange for her taking care of the household while we were together. 
    • Exception: not enforceable where sex is consideration for the agreement. 
  • Courts will not recognize implied agreements between unmarried cohabitants. 



"Heart Balm Actions" 


  • NY has abolished actions for breach of contract to marry, etc., but sister judgments based on heart balm claims are entitled to enforcement as matter of full faith and cred 
  • Actions not abolished: 
    • Deceit action may be maintained on basis of D's fraudulent misrepresentation of capacity to marry or fraudulent misrepresentation that marriage ceremony was legitimate. 
      • Cohabitation preceding fraud will bar recovery. 
    • To recover gifts solely in conisderation of marriage (not if donor was married to another when given; fault not a defense). 



Prenuptial Agreements


  • Engaged couples may enter into agreements, ordinarily economic, in anticipation of their marriage. Nothing limits the scope of these agreements to economics. 
  • Must be freely made
  • 3 Year SOL 
  • REQUIREMENTS for valid agreement –– 
    • Writing, signed and acknowledged by both parties (statute of frauds)
    • Couple must actually mary 
  • Defenses to Enforceability of Prenuptial Agreement 
    • Fraud (no trickery/coercion; must be voluntary/knowing; less likely to be fraud if both sides had independent counsel or relative business experience). 
    • Duress (no trickery or coercion; voluntary/knowing agreement;; independent legal counsel weighs against; threat to call of wedding ordinarily not duress). 
    • Unconscionability (looks to whether there was disclosure of financial situation; independent representation; relative sophistication of the parties and understanding of significance of signing the agreement).
      • Alimony –– must have been FAIR AND REASONABLE when the contract was made and NOT UNCONSCIONABLE at time of the divorce; 
      • Contracts requiring dissolution of marriage or providing for procurement of grounds for divorce are invalid.
      • All other provisions –– only requires that agreement was NOT UNCONSCIONABLE when made. 



Marriage – Creation 


  • Ceremonial Marriage is the only way to get married in New York. 
    • NY recognizes out-of-state common law marriages 
  • New York Marriage: 
    1. License 
      • Must have capacity to marry (sane mind; suitable age)
        • 18+, or 16-17 with prior written approval and consent of parents; younger than 16 need consent of parents and a judge; no one under 14. 
        • persons lacking mental capacity -> grounds for annulment 
        • void if married while serving life sentence of imprisonment. 
      • Same-sex couples can marry in NY 
    2. Ceremony 
      • Officiant (member of clergy; civil officer empowered to administer oath; ship captain at sea)
      • Witness (other than officiant) (commonly 2, need 1)
      • Solemn Declaration (indicating take obligation seriously; no specific words required or prescribed form of ceremony). 
      • Occurs between 24 hours and 60 days of the issurance of license. 



Marriage at sea 


  • Recognized in NY if valid under the law of the shipowner's domicile. 



Husband & Wife -- legal relation to each other


  • Can sue each other for injury to persons/property; 
  • Can make contracts with eachother, except those that alter/dissolve marriage or relieve of support if other spouse will become public charge 
    • A married woman's contracts do not bind her husband/husband's property. 
  • Wife can own/convey own separate property
  • Spouses can be convicted of crimes agianst each other, included rape. 
  • Wife's domicile doesn't necessarily follow husband's
  • Each spouse must support the other (means/need tests). A husband is liable for the wife's antenuptial debts only to the extent of property, if any, he has acquired from her; he is liable for postnuptial debts that wife has incurred for her support (probably goes both ways with gender).
  • A spouse who is not being supported can seek support in Family Court, which may be enforced by warrant for arrest; jail up to six mnths; rehabilitation program; probation; post bond; sequestering assets; suspending driving privileges; entering money judgment; etc. 




Terminating Marriage - Jur over Defendant and Durational Residence Requirements 



  • As long as NY is domicile of one party to the marriage, it may award judgment affecting status. 
  • Ancillary Qs such as support, alimony may be addressed only if NY has personal jur over adversey-affected party.
    • Can exercise if party to be affected had, at some time in the recent past, cnx with state of NY AND party seeking support is resident of or domiciled in the state when claim made. 
  • Durational Residency Requirements: 
    • None if both parties are NY residents; 
    • 1 year if the marriage was entered into in NY; was marital domicile at one point; or cause of action arose in NY; 
    • 2 years for any other reason. 



Marriage -- Termination 

(5 Causes of Action) 


  1. Declaration of Nullity 
  2. Annulment 
  3. Action for Legal Separation
  4. Divorce
  5. Dissolution
  • Confidential for 100 years
  • Compulsory financial disclosure 
  • No foreclosure on primary residence for payment of attorney's fees (But lien ok). 
  • Fees must be waived for indigents. 



Declaration of Nullity


  • Used when couple lacked capacity to marry and incapacity rendered marriage void; never really married but want the order for clarity. 
  • Grounds: 
    • Bigamy (not waivable)
      • but marriage becomes voidable and subject to ratification if spouse from previous valid marriage dies b4 action. 
    • Incest (criminal penalty of up to six months in prison)
      • Ancestors (mother, grandmother, great-grandmother; father, grandfather, great-grandfather); 
      • Descendants (son, daughter, grandchildren, great-grandchildren)
      • Siblings (whole or half; not step-siblings)
      • Lineal Relatives (aunt, uncle, niece, nephew, up or down one generation). 
        • legal to marry first cousins in NY 





  • 6 Year SOL unless otherwise specified 
  • Lack of capacity makes marriage voidable, not void. 
  • Five grounds: 
    • Underage (must be at least 18, unless 16+ and consent of both parents; or 14+ with consent of both parents and a judge; but can never lawfully marry under 14. 
      • Waiver – cohabitation continued after 18th birthday forfeits this ground for annulment. 
      • Deniable by court 
      • Jury trial 
    • Mental Incapacity or Illness 
      • At time of marriage – didn't understand what's going on 
      • Mental illness (5 years incurable insanity arrinsg after date of mariage; 3 court-appointed physcians agree on diagnosis; can recover from illness)
      • Development disability (child, etc.)
      • Forfeited by cohabitation and continued seual relationship
      • Right to jury trial 
    • Duress 
      • Threat of physical violence to obtain marriage
      • Waiver if cohabitation, sexual relationship after threat removed; 
      • Jury trial 
    • Fraud **
      • Misrepresentation or concealment of essential aspect of marriage by one party. Materiality requirement. Includes –– 
        • Fraud as to religion (type; sincerity; intesntiy)
        • Procreation (unable to have kids and agre where typically can; serious genetic conditions; pregnant with baby that's not husband's at time of marriage); 
        • Sexual history (must be major, i.e., prostitute, lying about sexual proclivities or intentions).
        • does not include money/property/social status on grounds that people don't get married to improve economic condition. 
        • Waiver if cohabitation and sexual relationship continue
        • 3 Years SOL from learning of fraud 
        • Jury trial 
    • Physical Incapacity (incurable physical inability to engage in safe, normal sexual intercourse; discovered upon trying to consummate marriage)
      • Exception -- if can be cured by medication; not applicable to fertility issues; psychological inability to have sex doesn't count.
      • Not waived by cohabitation. 
      • SOL = 5 years from date of marriage. 
      • NO JURY TRIAL –– Only one without jury right. 



Action for Legal Separation 

5 year SOL from date of grounds arising unless otherwise stated 

  • General rule: this does not terminate the marriage. Court (a judge, not a jury) grants permission to live separately, and will adjudicate collateral matters such as money and child custody. Can be permanent or temporary. 
  • Grounds 
    • Cruel and inhuman treatment 
      • Physical and/or mental abuse 
      • Continuing course of conduct 
    • Abandonment 
      • Voluntary departure (convicted of crime doesn't count); 
      • Not consented to by spouse
      • With no intent to return (no bright line time) 
      • OR --> Constructive Abandonment 
        • Refusal to have sex, carry on marital relationship. 
      • NO SOL (continuing offense) 
    • Adultery 
      • Defenses = condonation (waiver, freely resume cohabitation after learning); connivance (procuring the adultery of spouse); recrimination (also adultering).
      • 5 years SOL from discovery of offense
      • Proof must be through 3rd party testimony or circumstantial evidence; testimony of spouse alone not sufficient.
    • Three years' consecutive imprisonment
    • Failure to support (economically)
      • NOT a ground for divorce  





  • Fault Divorces 
    • Cruel, inhuman treatment 
    • Abandonment (1 full year) 
    • Adultery
    • Three years' imprisonment 
    • Conversion Divorce 
      • Couple separates (agreement or order)
        • If agreement, must be in writing, acknowledged, freely made, and filed with court before divorce. 
      • Physically separate and apart for 1 year then can convert into divorce 
        • Rescinded, starts again if you co-habitate with intent to reconcile. 
      • Waiver -- material breach of separation agreement. Sex with intent to reconcile affects separation agreement but not separation order. 
  • True No-Fault Divorce 
    • Irretrievable breakdown of marriage for period of at least 6 months. 
    • Usually one spouse's testimony OK
    • Divorce will not actually enter until collateral issues resolved (e.g., money, children)





  • Spouse missing without tidings for period of 5 years 
  • Must make diligent search 
  • Must publish request that spouse return for 3 consecutive weeks in an English-language newspaper 
  • Plaintiff must have lived in NY for at least 1 year or NY must have been matrimonial domicile at place of disappearance. 
  • No collateral remedies available 



Full Faith and Credit: 

Marriage and Divorce  

  • Out Of State And Non US Marriage: Valid where contracted then valid here unless it violates a strong public policy of the state of NY
  • Out Of State Divorce
    • Participation by Both Spouses: If both spouses participate give FULL FAITH AND CREDIT; no collateral attack allowed.  
      • That case is res judicata on all issues that were litigated or could have been litigated
    • Participation by One Spouse (Ex Parte): 
      Ex parte divorce in another US state is PF valid if P received notice but it can be collaterally attacked. 
      • Collateral attack would be evidence that the party who obtained the divorce was not truly domiciled in the forum state
  • Out of Country Divorces
    • Participation by Both Spouses: 
      NY usually recognize if both parties participate (liberal); Comity. 
    • Participation by One Spouse (Ex Parte) à Ex parte out of country divorce is totally invalid







Automatic Orders Upon Filing of Case Affecting Marital Status


  • No sale of assets
  • No concealment of assets
  • No incurring of unusual debts
  • No change in insurance covrage
  • Parties obligated to make full financial disclosures





  • TEMPORARY: designed to preserve status quo. Formula for temporary maintenance yields presumptive amount; court can adjust number in exercise of equitable discretion. 
  • POST JUDGMENT MAINTENANCE: NY statute itemizes 19 factors to be considered, and any others the court deems just and proper, in the decision about whether to award and amount of maintenance, including: 
    • Health and age of spouses
    • Earning capacity, education, timeline to develop skills; 
    • Custody of minor children; 
    • Caretaker to another family member;
    • Duration of marriage; 
    • Property ownership; 
    • Marital misconduct (fault OK to consider);
    • Anything else court deems relevant 
    • Rebuttable presumption that economically poorer spouse gets counsel fees. 
  • MODIFICATION: can be modified based on substantial change in circumstances (e.g., payor got laid off). This is discretionary to the judge, but any change is prospective only (must pay arrears); incentive to seek modification promptly. 
    • Maintenance under separation agreement has higher bar; can modify only on showing of extreme hardship. 
    • Court specified 
    • Automatic at death of either party, remarriage or recipient, or recipient lives with another person as if remarried (but can contract aorund these); 
    • Attach wages 
    • Take property
    • Take driver's license
    • Take away license to practice profession
    • Deny recreational license
    • Hold in contempt of court 



Division of Property


    • Separate property = acquired prior to marriage; git or inheritance received by spouse in sole name after marriage; property agreed upon to be separate; personal injury for pain and suffering; and any appreciation in value of those items unless due to other spouse's effort
    • Marital assets = appreciation of pre-marital assets of which spouse had role in appreciation (including being a homemaker, parent, if applicable); everything aquird during marriage regardless of whose salary is paid or whose name on deed/title; stuff bought with lottery earnings; and a professional degree earned during marriage.  
  2. Distribute the Assets 
    • Marital property divided equitable, on court's judgment/discretion: can considr maintenance award factors; loss of health insurance; loss of inheritance rights; need of custodial parent to live in home to care for kids. Fault not considered, unless egregious/shocking; heinous domestic violence. 
    • Can distribute assets in kind (condo to W, car to H) oor order cash award. 
    • Distributive awards not modifiable. 



Termination of Parental Rights 



  • Comes @ end of complicated process in which children initially taken from parents temporarily, cts and social workers try to fix problems, needs to be proven by clear and convincing evidence. Severs all contact (no visitation rights).

    5 Grounds (substantive grounds)

    • Abandonment (abandon child if fail to communicate or visit for at least 6 months; 

    • ct must find evidence and intent to give up parental rights).

    • Permanent Neglect (usually found where child in agency care and parent has failed for pd of at least 1 yr to plan for future of child and to maintain contact with child even though physically and financially capable of doing so. 

      • Or, near or impending danger to child + parent did not act as a reasonable parent would under similar crcumsances (balancing risk to child with harm removal would cause) --> e.g., where child witnesses abuse in household. 

      • 2012 ct of apps: incarceration for an extended period of time can be probative of neglect; ct said NO provision of visitation rights

    • Abuse (physical or sexual)

    • Mental Illness or Development Disability of Parent (Makes it impossible to properly parent the kid)

    • Murder of Sibling of Child in Question by Parent

  • Process

    • Litigate in family court

    • Case must be established or proved by clear & convincing evidence

    • Parent entitled to appointed counsel


Non-judicial (automatic) terminations: 

  • Life imprisonment; 
  • Minor gets married; 
  • Adoption 






  • Who can adopt? 
    • Married couple acting together
    • Single adult
    • Two unmarried parties in intimate relationship 
    • Step-parent 
    • Married persons separated under decree, agreement 
  • Who can be adopted? 
    • Any child or adult 
  • Process 
    • Obtain consents from both biological parents (unless voluntarily surrendered; i.e., put child up for adoption at agency) or involuntary termination of rights;
      • Biological father not married to mother has right to continued parental relationship determined by his acts of parental responsibility (acknowledgement; payment of pregnancy expenses; steps taken to establish legal responsibility, etc.). In the adoption of a newborn, father must be willing to assume custody
    • AND from custodian, if child in legal care of non-biological custodian;
    • AND consent of adoptee if older than 14. 
  • Investigation of Adoptive Parents
    • Interviews, background checks, homestudy 
    • Policy of religious matching 
    • Adoption by foster parents -- if cared for child 12+ months, preference as against other applicants. 
  • Hearing after 3 month period and then decree entered. 
  • Adoption creates full parent/child relationship in adoptive parents and severs natural parent's rights and duties to child (see Wills exceptions). 



Artificial Insemination 


Children conceived by AI are deemed the marital, natural offspring of H+W if they are born to a married woman; procedure is performed by person authorized to practice medicine; H+W give written, executed consents; and person who performs procedure certifies he has done so. 



Non-Marital Children


  • Non-marital children have the same rights as marital children in every aspect governed by law (SCOTUS). Non-marital children can inherit from both parents; sue for wrongful death; and receive the same benefits as marital children under government programs. 
  • Father must be identified, by: 
    • Acknowledgement of paternity;
    • Filiation proceeding 
      • Brought in family court; 
      • Commenced by mother; child; guardian ad litem; state or NY; or putative father if trying to enforce rights;
      • Prior to child's 21st birthday.
    • DNA tests can be ordered
    • Equitable Estoppel
      • A man who has held himself out to be father and established paternal relationship with child may be equitably estopped from denying paternity if child has justifialy relied on those representations. 
      • A mother can be estopped from denying paternity if she has acquiesced to development of relationship between child and putative father. 



Child Support 


  • Courts generally not involved when parent/child live in same household. 
  • Support orders to non-custodial parent usually at divorce, annulment, declaration of nullity, or non-marital child at filiation proceeding. 
  • Calculation of Support 
    • Based on parental income (parents can agree upwards)
    • Obligation to support through age 21, unless there are “special circumstances” – financial ability on part of parents and academic ability on part of kid –> parent required to pay support through completion of college. 
  • ​Modification 
    • ​3 years since last adjustment; or 
    • 15% change in either parent's income 
  • ​Termination 
    • ​Death of parent
    • Death of child 
    • When child reaches majority 
  • ​Enforcement 
    • Wage reduction orders
    • Asset seizures

    • Contempt of Court

    • Suspend passport 

    • File with IRS for tax refunds

    • Any lottery winnings 



Child's Forfeiture of Right to Support


When a minor has the ability to be economically independent through employment, and voluntarily and without cause withdraws from parental supervision an control, she forfeits her right to support. 



Child's Rights to School


  • Unless forfeited, persons 5+ and




Contracts Valid despite Infancy


  • Contracts by 18-year-olds; 
  • realty contracts related to husband and wife's home; 
  • contracts related to artistic/athletic services;
  • life insurance (14.5+);
  • student loans (16+)



Child Custody 


General Rule: Uniform statute has been adopted in all states except MA. 
Provides that a state may enter an initial custody order if it is currently the home state of the child or was the home state within the last 6 months

  • Home State: State where child has lived with parent for 6 months prior to commencement of custody proceeding
  • Moveaway Parent: Stay-behind state retains j/d for 6 months and then j/d will shift over. 
  • So long as kid or parent continues to live in that state, no other state can enter a conflicting order. 

New York: Best Interest of Child Test 

  • Foster parent who cared for child more than 12 months entitled to intervene in any proceeding involving custody of child. 
  • Health of parents (phys/mental)
  • Substance abuse by parent
  • Domestic violence (near automatic disqualification)
  • Criminality 
  • New companion of parent
  • Preference of children (if over 12)
  • Custody of siblings
  • Joint custody question (relationship; proximity)
  • Incarceration (custody not necessarily taken away). 

Custody and Visitation 

  • Custody dispute between parent and non-parent: still best interests of child but strong presumption in favor of biological parent. 
  • Relocation of custodial parent –– 
    • must get permission of court (move must be in best interests of child by preponderance of evidence)
  • Non-custodial parent always entitled to visitation 
  • Child support unaffected by denial of visitation rights. 
  • Grandparent must make showing of special circumstances to overcome parent's DP rights to deny visitation. 
    • E.g lived with grandparent and away from parent for 24 consecutive months. 







Child Support - Conflict of Law

  • General Rule: FFC for child support orders; governed by uniform support law

  • Any state that has entered an initial support order has continuing and exclusive j/d over the matter so long as either parent or kid continues to live there
  • Modification

    • Child support order is NOT a final order; it IS modifiable 

    • Uniform act changes that

    • Collaterally, uniform support law makes support orders enforceable directly across state lines





Intra-Family Immunity


  • Abolished in NY. Contributory negligence or culpable conduct of parent/custodian not imputed to child. Parents owe duty to protect others from harm caused by a child's use of dangrous instrument improvidently provided.
  • A parent/guardian of child 10+ but younger than 18 is liable for the child's willful, malicious, or unlawful damage or destruction of another person's real or personal property. 



Jury Trial Rights in Matrimonial Actions


Only for: divorce, declaration of nullity, annulment actions (except re physical incapacity).