Flashcards in Family Law Deck (35)
Types of marriage
Ceremonial: recognized in NY. requires license + solemnization (1 witness, 1 officiator). License requires:
-18 OR 16-17 + parental consent OR 15 + parental consent + court consent.
-must wait at least 24 hours.
-blacks must get sickle cell anemia test.
-reasons to deny: already married, closer relation than 1st cousins, sham, incapable of understanding the act (drunk).
Common law: NOT recognized in NY, but will recognize if in other state.
NY allows K for variety of services, BUT NOT sexual relations.
Heart balm actions
NOT available in NY.
BUT gifts in anticipation of marriage are recoverable.
Marriage is considered valid up until date of annulment decree, when it ends.
* void marriage
-not recognized for any purpose EXCEPT child legitimacy.
-grounds: bigamy, incest, life sentence, enoch arden (5 years presumed dead).
-necessary consents for age not obtained. BUT once age of majority reached, no longer voidable. ONLY parents of minor spouse may use this ground.
-physical incapacity to have children, if other party was unaware.
-fraud or misrep: 3 years SOL.
-mental illness at least 5 years.
Signed + writing + notarized.
* grounds: all fault grounds for divorce + failure to support.
-cannot obligate giving up support otherwise entitled to.
-if same attorney for both parties, court will take "hard look."
* if apart for 1 year, can then get conversion divorce, in which case the separation agreement either:
1) merges with divorce decree. only judgment remains, enforceable as judgment.
2) incorporated: agreement remains separate, enforceable as K.
-agreement will only be changed under "extreme circumstances."
"Irretrievably broken" at least 6 months.
All issues must be resolved before divorce is granted.
Fault grounds for divorce
-5 year SOL from discovery
-recrimination defense available.
2) Cruel and inhuman treatment
-harmful to physical or mental health + cohabitation unsafe.
-5 year SOL from last occurrence.
-leaves for at least 1 year, with no intent to return.
4) Imprisonment 3+ years
-5 year SOL once inmate is released
Defenses to divorce action
NOT religious difference.
* in Supreme Court.
* Marital property = everything acquired during marriage, EXCEPT:
1) acquired before marriage.
2) specific agreement.
3) gift or inheritance.
4) acquired by exchange of separate property.
5) passive appreciation.
6) personal injury compensation
7) social security.
* Included in marital property:
1) professional license: career enhancement value.
2) Retirement plans and pension benefits that have VESTED.
3) commingling of income = intent to created marital property.
4) stock plans to the extent of being payment for work during the marriage.
Factors in distributing marital property
1) income at time of marriage and divorce.
2) loss of inheritance.
3) age and health.
4) duration of marriage.
5) need for custodial parent in marital residence.
6) spousal support.
8) any fact touching on value of property
9) future inheritances not part of marital property.
1) Pendant life - during proceedings.
2) Short-term (preferred)
3) Long term
-standard of living during marriage.
- if not separation agreement, then "significant change in circumstances" required to modify.
- if separation agreement, then "extreme circumstances" needed to modify.
* Spousal maintenance ends with:
- Death or remarriage.
- NOT cohabitation.
Child support: NEVER modifiable.
Spousal support: NOT discharged by death or remarriage, BUT for showing of good cause, can be modified.
-MAY suspend spousal maintenance as retaliation for withholding visitation rights.
Jurisdiction over family matters
Property distribution and dissolution of marriage, separation agreements --> Supreme Court ONLY.
Child support, child custody, spousal maintenance --> family court OR supreme court (UNLESS parties were never married, in which case family court).
SMJ over marriages
* Both parties have continuous residence in NY for over 1 year + 1 of 3 factors:
1) married in NY
2) resided in NY as husband and wife
3) cause of action arose in NY
* one party has resided continuously in NY for 2 years.
* over out-of-state resident when:
1) NY was matrimonial domicile before separation
2) defendant abandoned plaintiff in NY
3) claim for relief accrued under NY law
4) claim pursuant to agreement concluded in NY.
NY gives full faith and credit to foreign country divorces, EXCEPT for ex parte or mail order divorces.
Court can order blood test for paternity, BUT need clear and convincing evidence. Blood test can disprove paternity, but insufficient to prove. test must be done before child reaches 21.
* Presumption that wife's child is husband's, even in face of evidence she used artificial insemination.
* Paternity by estoppel: if man holds himself out as father, he can't withdraw later, even if he was cuckolded.
Calculating Child support
NY uses 3-part test under Child Support Standards Act:
1) Calculate combined income from all sources for mother and father.
2) Then apply statutory percentage based on # of children:
-1 = 17%
-2 = 25%
-3 = 29%
-4 = 31%
-5 = 35%
3) determine respective amounts owed for mother and father.
* Deviations permitted over $130k based on a variety of factors:
- special needs child.
- standard of living.
- big disparity in income.
- education expenses: potential of child + attainment of parents + resources.
- children from previous marriages.
Modification of child support
* standard = "substantial change in circumstances".
- if seeking upward modification, must show change in circumstances + best interests of the child.
- for job loss by noncustodial parent, court will consider whether or not he has "clean hands."
Termination of child support
21 years old (UNLESS disabled)
Emancipation: totality of circumstances, no longer under "care and control" of parent.
Uniform Interstate Family Support Act (UIFSA)
States have agreed that original state has EXCLUSIVE jurisdiction, until both parents and child leave NY OR parties agree to other jurisdiction in writing.
Full Faith and Credit Child Support Act
Child support decisions are given full faith and credit.
Enforcing child support via long-arm statute
1) respondent has lived in NY.
2) has provided support for child in NY.
3) respondent directed child to live in NY.
4) conception was in NY.
5) father asserted rights via registry in NY.
6) any other constitutional basis.
* Standard = best interests of the child.
- if sworn statement regarding domestic violence, court MUST consider.
- race or religion may NOT be factors.
- sexual conduct NOT relevant.
- may NOT give custody if parent murdered other parent.
- grandparents can have visitation, but court will defer to biological parents.
Modification of child custody
* change of circumstances + best interests of the child:
Rights of non-marital children
MAY have claim for wrongful death.
MAY share in worker's comp.
NOT right to inheritance.
Uniform Child Custody Jurisdiction Enforcement Act
Home state has exclusive, continuing jurisdiction.
Home state = where child has lived for 6+ months (or since birth for infant) OR where the child resided in the past 6 months with at least 1 parent.
Property settlement agreement
MUST be finalized before divorce.
Valid provided that:
1) fair, reasonable, and voluntary
2) with full disclosure
* private adoptions may be brought in family or surrogate's court. agency adoptions in family court ONLY.
* adoption records can be unsealed on showing of good cause: medical illness, mental illness of physical condition is prima faciae showing of good cause.
NO payments to surrogate EXCEPT medical and direct costs of pregnancy.
1) private placement, consent given before judge = irrevocable.
- if father fails to register, adoption can proceed with mother only.
2) extra-judicial consent, revocable within 45 days.
3) agency adoption ,can revoke within 30 days of child being placed with adoptive parents.
4) if child over 14, child must consent.
5) unwed father consent required ONLY IF can show "substantial and continuous" repeated contact with child.
* Legal effect = as if adoption were a birth.
- MAY permit grandparent visitation over objections of adoptive parents if in best interests of child.
Involuntary termination of parental rights
1) Abandonment for at least 6 months
2) permanent neglect for 1 year
3) Abuse of the child or sibling
* standard of proof = clear and convincing evidence.
Civil --> family court.
-victim sues, can get temporary child support or custody.
Criminal --> criminal court.
-district attorney brings charges.
* Protective orders
- May be issued ex parte
- last up to 2 years, or 5 years if severe and aggravating circumstances (weapon, serious injury, history of violence, immediate danger)
Report --> Child welfare agency --> investigation --> if claim substantiated, case continues.
- if child remains at home, agency must use "diligent and reasonable efforts" to ensure child's safety.
- if child removed from home, must show reasonable efforts to avoid removal.
petition --> fact finding hearing --> emergency placement.
-child has right to attorney throughout.
- if child is in place for 15-22 months, agency MUST file petition to involuntarily terminate parental rights. need to show by clear and convincing evidence that child was abused or neglected and cannot safely return home.
Crime by person 7-16 --> family court (17 or 18 may be tried as adult). called a "fact finding hearing."
- no jury or bail.
- right to attorney.
- SOP = beyond a reasonable doubt.
- "disposition" = sentencing hearing.
Persons in Need of Supervision
Minor with status offense:
2) Being incorrigible
3) Being ungovernable
* filed in family court.
- child can be placed for 18 months in foster care, BUT NOT in detention facility.