Family Law Flashcards
(38 cards)
Marriage - NY Formal Reqs
1) license: age rules (14/15: parental consent & ct approval, 16/17: parental consent) + waiting period (1-60 days) + testing (sickle cell)
2) solemnization: 1+ witness and judge/politician/clergy must officiate
No marriage license
1) preexisting marriage
2) co-sanguinity (1st cousins and adopted siblings OK)
3) sham marriage
4) incompetence/inebriation
Annulment - void marriages
Void marriage - Not legally recognized except afterward for purposes of legitimacy
1) Bigamy
2) Incest
3) Married while serving life sentence
4) “Enoch Arden” statute = spouse believed dead b/c of absence for 5 years + newspaper publication for 3 weeks. Ct then annuls.
Annulment - voidable marriages
Voidable marraige - valid until one spouse seeks to void it by ct decree. *6 yr SoL.
1) Age: only minor spouse or her parents can use this, and only before reaching 18 if still together
2) Mental incapacity: by mentally ill spouse or their relatives, or by normal spouse iff incapacity wasn’t obvious at marriage time
3) Physical incapacity: one party unable to procreate at time of marriage, and moving party didn’t know (5 yr SoL + no jury)
4) Fraud/coercion/misrepresentation: must go to essence of marriage (3 yr SoL)
Legal separation - formalities
1) in writing, 2) signed, 3) notarized
- Cannot expressly req parties to divorce.
- Parties must actually separate to get conversion divorce.
- Grounds = same as divorce + “failure to support” if spouse possess means to do so and supported spouse needs it.
Effect of separation agreement on divorce
Merger = agreement merged into divorce decree, which then governs.
- Incorporation = sep. agreement continues as independent K and can be sued on. NY presumes this one if parties silent.
- NB: Ct can only modify sep. agree. w/ consent of parties UNLESS supported spouse is receiving so little she’s in danger of becoming a public charge.
Divorce - grounds
1) No-fault
2) Conversion
3) Fault:
a. Adultery
b. Cruel/inhumane treatment
c. Abandonment
d. Imprisonment
No-fault divorce
One spouses testifies under oath that marriage is “IRRETRIEVABLY BROKEN” and has been for at least SIX MONTHS.
- NB: All economic & child-related issues must be resolved before ct will grant divorce.
Conversion divorce
On request to ct, after parties have lived apart for ONE YEAR w/out material breach.
Adultery - basics
Def: voluntary sexual intercourse w/out someone besides spouse.
- Circ evidence OK iff party had opportunity and inclination. PI or prostitue’s testimony must be corroborated.
- SoL = 5 yrs
Fault-based divorce - defenses
- Recrimination: π was also engaged in adultery
- Connivance: π knew of and benefited from adultery
- Condonation: π forgave misconduct & resumed marriage
- Provocation: misconduct provoked by π
- Collusion: parties colluding to get divorce
- Consent: defense to abandonment or adultery
- Justification: defense to abandonment.
Cruel & inhumane treatment
Def: π shows course of conduct by ∆ that is harmful to π’s health and makes continued cohabitation unsafe.
- 5 yr SoL
Abandonment
1) ∆ voluntarily leaves marital home,
2) w/out cause or consent,
3) w/ intent to remain apart permanently,
4) and does so for 1 yr.
“Constructive abandonment” = spouse unjustifiably forces other to leave the house.
Imprisonment
For 3+ consecutive years after marriage. Only spouse of prisoner has grounds for divorce.
Equitable distribution
Def: NY divides MARITAL PROPERTY on basis of fair distribution, considering totality of circs.
- NB: Marital fault not considered in distrib. unless it is EGREGIOUS.
- Party may ask ct for equit. distr. as part of divorce proceedings.
- Cf: community property = equal division of assets.
Marital property - exceptions
1) Property acquired before marriage
2) Excluded by pre-nup
3) Acquired by gift or inheritance
4) Personal injury compensation
5) Property acquired in exchange for sep prop
6) Passive appreciation on sep prop
Marital property - misc.
- Professional degrees = marital property in NY & ct values in terms of future earnings
- Retirement/pension benefits = MP
- SS Benefits = NOT MP
- Stock plans = MAYBE MP if for past work; if future incentive, then no. Ct will examine and divide accordingly.
- Possible future interest in property = NOT MP
- Active appreciation of sep prop = MP
Spousal maintenance
- Awarded by ct when spouse can’t support herself; based on couple’s living standard but includes totality of circumstances.
- Marital fault considered iff EGREGIOUS.
- Preference for short-term maintenance
Maintenance modification
- Reqs: “significant change in circs” to modify.
UNLESS it came from sep agreement, in which case recipient spouse must be in danger of becoming public charge.
End of maintenance
1) death (NB: ct may req supportor to maintain sufficient life insurance for suportee’s benefit)
2) remarriage of receiving spouse
3) willful interference w/ visitation (suspension only)
- NB: Arrears can be modified for good cause until they have been reduced to a judgment.
JX: Supreme Court v. Family Ct
S.Ct. = exclusive jx over divorces and property distribution
Family ct. = shares jx w/ S.ct. on child-care issues; only venue for non-married parties; exclusive jx over paternity actions
Residency Reqs
For matrimonial action to be filed in NY:
I. Parties are both residents of NY & CoA arose there
II. One party has 1 yr NY residency AND the couple a) married in NY, b) lived in NY as spouses, OR c) CoA arose in NY.
III. If none of above, 1 party has resided in NY for 2 yrs before filing complaint.
Ex parte divorce
NY allows divorce proceedings even where no pjx over 1 spouse. DOES NOT include child support or maintenance actions.
Reqs ONE of these:
- NY was matrimonial domicile before separation;
- ∆ abandoned π in NY;
- claim is pursuant to separation agreement signed in NY.
Paternity
Paternity action can be brought in family ct before child turns 21. Ct may order blood tests, but that alone is insufficient.
Rule: must be proved by C&CE.
Presumption: child of marriage is child of father, unless he wasn’t living w/ her at time.
