Family Law Flashcards
(36 cards)
Conflicts
Foreign divorces.
Foreign (out of country) Divorce
Bilateral – recognized under comity - here it is not based on domicile, but on personal appearance of the petitioning spouse & the defendant spouse’s voluntary appearance through an attorney, if the petitioning spouse has satisfied residency requirements of the foreign nation granting the divorce, this type of divorce will be recognized under comity.
Ex-parte foreign divorce is totally invalid
Conflicts
Interstate custody disputes.
Typical pattern, one court enters a custody order in State A, one of the parents moves to State B & seeks re-adjudication of custody
Uniform Child Custody Jurisdiction & Enforcement Act - all states must defer to original custody order entered by home state of child
First state has continuing exclusive jurisdiction until court determines that neither the child or the child +1 parent have a significant connection to the state & substantial evidence relating to the matter is no longer available in the state or the child & the parent no longer reside in the state
Conflicts
Marriage validity, bilateral & ex parte divorces.
Marriage valid where contracted will be valid in NY, except (maybe) gay marriage
Bilateral out-of-state divorce - valid in NY, & is res judicata as to all collateral issues (domicile over 1 party & PJ over other)
Unilateral/ex parte out-of-state divorce - prima facie valid in NY if D received service of process - if D shows void for lack of juris. NY will not give it FF&C & will even declare subsequent marriage by P to another as void (bigamy)
If valid - res judicata applies w/ respect to all issues Plaintiff could have raised.
Conflicts
Non-payment of support obligations.
Uniform Interstate Family Support Act – every state must defer to the state that is the home state of the child that is receiving the support – only the court which issued the original support order will have original & continuing exclusive jurisdiction – this jurisdiction will continue until all parties leave the state
Full Faith & Credit for Support Orders Act (FEDERAL) – requires that all states give FF&C to the orders & decrees entered in the original court of sister jurisdiction (must have had proper juris. at time & opportunity for both parents to hear the case)
Child Support Recovery Act (FEDERAL) –parent falls behind 1 yr. or $5k in support obligation & child lives in another state, non-paying parent could be sent to jail.
Children
Ways to have children?
Artificial insemination – child is marital child if woman is married & husband consent (sperm donor NOT a parent)
Surrogate parenting – Ks obligating surrogate mom to turn child over are void - against PP
Adoption - Anyone can adopt & anyone can be adopted (to est. genuine parent-child relationship)
Must have consent of all necessary parties, or demonstrate that consent is legally unnecessary.
Steps to Adoption – (1) State investigation of prospective adopting parents, (2) 3 mo. trial period, & (3) hearing to finalize adoption à order of adoption entered.
Children
Child Support
Both biological parents must support their children through age 21 (or through college if special circum.)
Amount of Support - Mechanical calculation set as % of gross income based on numbers of kids & then prorates the result b/w the parents based on their respective incomes
Modification - permissible based on changed circumstances – child seeking = ANY change but parent seeking = must show severe & unforeseen change in circum.
Voluntarily give up custody to state for adoption – obligated to support it until adopted.
Estoppel – if P acts like father based on lie of mother, P is estopped from denying parenthood later on
Children
Who must consent for an adoption to be valid?
Adoptee under 18 - consent of both biological parents & anyone else with legal custody
Adoptee over 14 - adoptee must consent
Parent’s right to consent can be dispensed with if:
(1) Surrender child to the state
(2) Parent mentally incapacitated precluding parent from taking care of child
(3) Parent abandoned child (6 mos. w/ no contact)
(4) Neglect of child (1 yr. w/ insubstantial contact – child support is substantial contact) - includes (a) parent’s conduct poses an imminent danger to child and (b) the behavior falls below minimum degree of care of a reasonable parent acting under similar circumstance.
(5) Has been superseded by guardian appointed under statute.
Unwed father’s consent - fathers have constitutionally protected parental rights if fathers “grasp the opportunity to form a relationship with their child”
Unwed father of a newborn can veto an adoption if he promptly manifests a willingness to establish a relationship with the child – promptness measured by baby’s life, not when father learns of baby.
Children
Child Custody
Legal - decision-making authority
Physical – where will child live
Can be exclusive or shared
“Best interest of the child” standard used.
Court may take the unsworn testimony of a child in private but court must make a record of such testimony to provide the AD grounds for review.
Parent druggie & non-parent battle – NP must show best interests & extraordinary unfitness of real parent
Grandparent can ask for visitation, but must establish standing by showing (1) One of the parents is deceased & (2) circum. showing appropriate for equity to intervene.
Must overcome special weight given to parent’s preferences, b/c presumption that parent’s wishes are in best interest of child.
Modification - Reassessed under “best interest” standard w/ focus on stability
Relocation - custodial parent wants to move away, must go to Ct & show by POTE that relocation is in best interest of child.
Property Distribution
What qualifies as separate property?
Separate Property
Anything owned prior to marriage
Bequests/gifts received by either spouse in their sole name
Inheritance
Property they agree will be treated as separate property (in written agmt)
Personal injury compensation
Passive appreciation on the above property (change in value due to time or market place fluctuation)
BUT appreciation due to active participation or mgmt by spouse in adding value is a marital asset (Ex – increase in value of a separate property during the marriage due to the contribution of the other spouse as homemaker & parent)
Property Distribution
What can a court consider when dividing property?
Court may consider any relevant factor, EXCEPT marital fault, unless such fault is egregious
Courts divide marital property equitably & are guided by statutory factors (age, health, job skills, custodian of children, etc.) but there is no exact percentage & the court has discretion – the longer the marriage the closer it will be to a 50/50 split.
Abandonment alone is not sufficiently egregious to permit a court to deviate form an equal distribution of assets.
Mechanics - Can order in-kind transfer or lump sum payment to effectuate distribution.
Property Distribution
Equitable distribution statute.
Equitable Distribution Statute
1st - Divide assets into:
H’s separate property
W’s separate property
Marital property subject to distribution
2nd - Give H and W their separate property & then exercise equitable discretion to divide up the marital property subject to distribution
Property Distribution
What qualifies as marital property?
Marital Property
All property acquired during marriage regardless of how asset titled & who works
Includes professional licenses/degrees earned during marriage (but advanced earnings cannot be double counted for alimony purposes)
All businesses, salaries, stock options, lottery winnings, pension rights, professional licenses, gifts from spouse
Economic Agreements
How is maintenance determined & what types of factors does the
court look at?
Temporary maintenance - ordered while case is pending to meet temporary needs of parties
Final Maintenance – no automatic entitlement—based on reasonable needs of recipient.
Court may consider ANY factor it deems relevant, including nature & degree of fault
Usually considers: (1) age and health of parties; (2) skills, earning capacity, time needed to gain job skills; (3) whether spouse cares for the children; (4) standard of living while married; (5) duration of the marriage
Conversion divorce based on separation agreement - maintenance can be addressed in separation agmt & court can it but close scrutiny of agmt if any evidence of overreaching
Economic Agreements
Maintenance termination.
Duration can be set forth in decree – otherwise continues indefinitely – can also negotiate for early termination or survival past death.
Normally terminates on death of either party
Remarriage of recipient spouse is grounds for termination
Cohabitation w/o marriage not enough to terminate unless cohabatitor represents to the world that he’s married.
Termination of Marriage
Professional responsibility of lawyers in divorce actions.
Attorney must provide client w/:
Statement of client rights/responsibilities
Written retainer agreement (at beginning of representation)
Closing statement itemizing written bill explaining how lawyer arrived at his fee
Cannot take as security for fee a mortgage on client’s house & cannot take non-refundable fee.
No sex during representation.
If lawyer violated any of duties & services were rendered – if the fee has not been paid yet, lawyer cannot collect fee but if already paid then must return it except fee for reasonable services already rendered
Economic Agreements
Maintenance enforcement & modification.
Enforcement
Property can be seized & sold
Wages can be attached
Seize drivers & professional licenses
Jail for judicial contempt
Modification
File a petition for modification
Permissible upon showing of change in circumstances (payer got laid off, injured, recently graduated school & can now get job)
Separation agmt - extreme hardship must be shown BUT if the separation agmt was merged into the divorce decree the agmt did not survive the divorce & the petitioner need only show substantial change
Prospective only – encourages people to get to ct. early upon a change in circumstances
Termination of Marriage
Conversion Divorce – conversion of legal separation into divorce.
Separate pursuant to court ordered legal separation, OR mutual agreement embodied in a separation agreement & live apart for 1 year.
Separation Agmt Reqs – (1) freely made, (2) in writing & acknowledged, (3) filed w/ court clerk as a prereq. for divorce decree (no need to be filed 1 year before)
Rescission of separation agreement - cohabitation during 1 year w/ intent to reconcile resets clock & requires reexecution of agmt. BUT not casual, isolated cohab w/ no intent to reconcile
Rescission does NOT apply to court decree - if reconciliation under a separation decree, there is no harm to decree or 1 yr running period
Material breach of separation agmt - rescinds agmt & it can’t be used for conversion divorce
Termination of Marriage
Civil Procedure for Divorces
Supreme Court has exclusive jurisdiction but may refer incidental matters (support, custody, or visitation) to Family Ct.
SMJ - 1 spouse domiciled in NY, and 1 of the Durational Residency Reqs
PJ required over D to get collateral orders (e.g. support, alimony, custody)
Pleadings must be verified (i.e. sworn to) - except Answer in adultery case
D must be personally served - can ask court for alternative method
Summary judgment - may NOT be granted in favor of the non-moving party
Jury Trial – permitted in divorce, declaration of nullity & annulment action (except one on the grounds of physical incapacity) but NOT permitted in separation actions
Disclosure of financial assets – so court has rational basis to enter financial orders
Confidentiality - Matrimonial records kept sealed for 100 years
Termination of Marriage
What are grounds for a divorce?
Grounds for Divorce
Cruel & inhuman treatment
Abandonment for 1 year or more (no set period for legal separation)
Adultery
3 years consecutive imprisonment
é Failure to support is NOT a ground for divorce
é JURY TRIAL to determine grounds for divorce.
Termination of Marriage
Dissolution of Marriage
Only available when spouse has been missing for 5 years w/o any tidings.
Petitioner-Spouse must be NY resident for 1 year, or NY must have been the matrimonial domicile at time of disappearance.
Publication - Publish request that spouse return in English language newspaper, regardless of language spouse speaks, for 3 consecutive weeks.
Proceedings only consider if absent spouse is dead – no collateral issue decided (property, child custody, alimony) b/c operation of law takes over & will or intestacy is followed (it is as if the missing spouse is dead).
Termination of Marriage
Separation – Cruel & Inhuman Treatment, Imprisonment, Failure to Provide Economic Support.
Cruel and inhuman treatment (physical or mental) – must be evidence that well-being of spouse endangered rendering it unsafe or improper for P to cohabitate with D
Subjective test – determination only relates to particular P-spouse, not “reasonable spouse”
If P continued to cohabitate after abuse, court will consider it as a factor but it is not dispositive.
Three Years Consecutive Imprisonment During Marriage
Failure to provide economic support – if neglect or actual refusal to provide support – the separation order will contain a support clause (fault may be considered to determine award)
Termination of Marriage
Separation - Abandonment
Abandonment – a (1) willful & voluntary departure, (2) w/o consent of the other spouse, (3) w/o intent to return, (4) w/o justification
Conduct plus intent - intent inferred from duration/length of absence
Without consent or justification - to escape violence always justified
Constructive abandonment – D walked away from marriage in metaphorical sense – e.g. refusal to have sex (but NOT refusal to have oral sex) or locks spouse out of house
Termination of Marriage
What is the effect of a legal separation & why would someone get one?
Ct. granted permission to live apart (so no sex obligations) & liquidates any support obligation
Judge can give permanent or temporary order of separation
Why get separation? (*note in essay)
Financial or legal reasons – parties may want to maintain technical status b/c of social security benefits, inheritance rts, continue being a beneficiary of certain insurance plan
Religious reasons – some people will never get divorces
é No jury trial for separation proceedings.
Termination of Marriage
Separation - Adultery
Defenses:
Recrimination – (dirty hands) – P spouse has also committed adultery
Condonation – knowledge + forgiveness + cohabitation
Connivance – form of entrapment – P procured adultery
SOL - 5 years from discovery
Pleading of parties must be verified, except for D-Spouse’s answer.
Spouses can only testify on 3 subjects: (1) to prove existence of marriage, (2) D-Spouse can testify to deny the adultery, (3) P-spouse can testify to deny a defense.
P-Spouse cannot testify to prove the adultery - need to get third party testimony or circumstantial evidence (opportunity & disposition) to prove adultery.
Testimony of private detectives & prostitutes must be corroborated.
