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NY/ MBE Bar Study > Family Law > Flashcards

Flashcards in Family Law Deck (35):
1

What was the effect of the marriage equality act?

common law & same sex marraige now valid

2

Who has legal capacity to marry? (3)

1. 18 and over
2. over 16 w/ consent of both parents
3. over 14 w/ consent of parents and judge

3

What are the 4 conditions for validty of an antenuptual contract?

1. writing
2. signed (both parties)
3. voluntary
4. not unconscionable
- cant include agreement on divroce

4

What are the 3 rights of a non-marital child?

1. inheritance from both parents
2. sue for wrongful death
3. financial/ economic support from both parents

5

What must occur for antenuptual contract to have effect?

couple must marry

6

What are the 3 conditions needed for a valid postnuptial contract?

1. writing
2. subscribed by both parties
3. acknowledged/ recorded like deed

7

In paternity suit b/w mother and father, who needs to corroborate testimony regarding relations?

father must corroborate testimony/ evidence of mothers relations with other men

8

What 4 people can commence a paternity suit?

1. mother
2. child (or child's guardian)
3. state
4. father

9

When must a paternity suit be brought? where?

- anytime prior to childs 21st bday
-in family court

10

What 4 people can commence a paternity suit?

1. mother
2. child (guardian)
3. state
4. father

11

How is DNA testing treated in paternity suits when result excludes father as medically impossible?

conclusive

12

What 5 actions will a court take if neglect is found?

1. suspend judgement for 1 yr
2. release child to parent
3. place child in custody of suitable person
4. make order of protection (guidelines to 4 parent to follow)
5. return to parent after 1 yr placement outside home

13

What are the 4 grounds for finding permanent neglect?

1. abandonment
2. neglect
3. abuse
4. mental incompetence

14

Who is a juvenile offender?

-between 13-15
-committs serious of violent act
-may be heard in supreme/ family court

15

In an adoption proceeding, in what 4 instances is consent unnecessary?

1. parents formally surrended child
2. parent mentally incapacitated
3. abandonment (6 mths or more)
4. neglect

16

What are the 2 elements of neglect?

1. conduct imposes imminent danger to child AND
2. conduct falls below the minimum degree of care of a reasonable parent in a similar situation

17

Who may adopt a child? (4)

1. 2 married ppl
2. single person
3. married minor may adopt step-children
4. married, seperated adult

18

What are the 4 defenses to adultery?

1, recrimination (D proves P was adulterous)
2. condonation (spouse acquiesced)
3. connivance (entrapment)
4. SOL (5 years or SOL

19

What 3 steps will a court follow before confirming an adoption?

1. obtain consent (or determine consent unecessary)
2. investigate prospective parents
3. conduct hearing

20

In an abortion proceeding, in what 4 instances is consent unnecessary?

1. parents formally surrended child
2. parent mentally incapacitated
3. abandonment (6 mths or more)
4. neglect

21

What are the 2 grounds for the declaration of nullity?

1. incest
2. bigamy

22

What are the 5 grounds for a divorce action?

1. cruel & inhuman treatment
2. abandonment (1 yr or more)
3. adultry (same rules as seperation)
4. 3 yrs consecutive imprisonment
5. conversion divorce (based on separation agreement)
-5 yr SOL for divorce actions

23

What 3 types of evidence are required for dissolution of a marriage?

1. diligent search
2. publish request (in english speaking paper for 3 con weeks)
state for over 1 yr OR state matrimonial domicile when they disappeared)

24

Who may provide evidence of adultery? (3)

1. 3rd party
2. circumstantial evidence
3. prostitute or private investigator
- no evidence allowed fr P

25

What are the 5 grounds for legal separation?

1. cruel and inhuman treatment (mental or physical abuse)
2. abandonment (no time req just show intent)
3. adultery
4. 3 yrs consectutive imprisonment
5. failure to support
-5 yr SOL for seperation action

26

Are professional licenses and educational degrees marital property?

yes if obtained during marraige

27

What are the 2 types/ forms of custody?

1. physical
2. legal (decision making power)

28

What is the uniform child custody jurisdiction and enforcement act?

1. home state of child has exclusive jurisdiction
2. all other states must defer to home state
3. home state = child lived with parent for 6 months or more consecutively

29

What are 2 reasons a child custody order could be changed/ modified?

1. geogrphic move of parent
2. change in lifestyle of parent

30

What 6 methods will a court use to enforce maintenance/ support payments?

1. seize assets and sell
2. garnish wages
3. revoke driviers license
4. revoke professional license
5. contempt of court
6. counsel fees

31

What are the 6 categories of seperate property?

1. assets owned prior to marriage
2. bequest / gifts made to 1 party
3. personal injury compensation
4. anything agreed separate by parties
5. appreciation of individual property (unless attributable to efforts of other spouse ex homemaker)
6. anything acquired after separation/ divorce

32

What can court not consider when distributing property?

marital fault

33

What factors may a court use when determining spousal maintenance?

any relevant factors (ex age, health, earning capacity, duration of marriage)

34

How long must a biological parent support their child?

until 21 (may be longer based on academic/ finanical ability of child)

35

What 3 ways is a support/ maintence order terminated?

1. court specific termination
2. death of either party (parties may contract to support beyond death estate will provide)
3. recipient remarries or cohabitates as if married