Family Law [NY]

Question 1

Limitations on who can marry

Answer 1

1) bigamy
2) same-sex marriage (previously)
3) incest: treated as void (cousins is up in the air)
4) minors
-generally 18–but can marry in some places earlier with parental approval
5) physical incapacity
4) fraudulent marriage
-voidable for fraud if a party makes a material representation that affects essentials of marriage

Question 2

Common Law Marriage

Answer 2

Most states have abolished

If legal–must prove the parties:
1) cohabitated for the statutory period
2) held themselves out as married AND
3) intended to be married

most states will recognize CL marriage if valid in state obtained

Question 3

Premarital Contracts

Answer 3

Will enforce as valid if:
1) in writing + signed by both parties
2) executed post-full disclosure of finances of both parties AND
3) voluntary

Question 4

What makes entering a pre-nup VOLUNTARY

Answer 4

1) independent legal counsel
2) length of time between the agreement and marriage
3) sophistication of the parties AND
4) presence of other pressing reasons to proceed with marriage

Question 5

UPAA + enforcement of pre-nup

Answer 5

Party against whom enforcement is sought must show that:
1) NOT VOLUNTARY OR
2)
a. unconscionable when executed AND
b. party did not receive fair and reasonable disclosure
c. did not have, or could not have had adequate knowledge of other parties financial situation

Question 6

Child Custody

Answer 6

Most courts decide based on the best interests of the child at the time of the hearing

Question 7

Child Support

Answer 7

Parents have absolute obligation to support their kids
-prenup CANNOT contract out of child support

Question 8

Divorce

Answer 8

Traditionally: only allowed if one party was determined to be at fault

TODAY: some states have completely abolished at fault divorce
-every state has created a form of no-fault divorce

No fault divorce common grounds:
1) min time of separation (6-1 years usually) AND/OR
2) irreconcilable differences

some both or some one or the other

Question 9

Divorce + Jurisdiction

Answer 9

Jurisdiction over marital stuff is state courts role

Full Faith + Credit Clause: a divorce validly granted in one state is entitled to FF + C in other states
Generally must be recognized by other states when petitioner:
1) domiciled in state that granted the divorce AND
2) provided adequate notice of the proceeding to the other spouse

NOTE: FF + C does NOT apply to the division of property
-cannot do without personal jurisdiction over both parties

Question 10

Division of Property [GENERALLY}

Answer 10

Community property v. equitable distribution (mostly ED)

Analysis:
1) property is separate or marital
2) determine equitable distribution between the two

Question 11

Separate v. Marital Property

Answer 11

Separate includes:
-acquired before marriage
-inherited during marriage
-property acquired with proceeds of separate property
-passive appreciation of separate property

Martial includes:
-generally all property acquired during marriage that is NOT separate
Active appreciation: appreciation in value due to efforts of either spouse

Question 12

Degrees/licenses

Answer 12

basically every state considered separate property

BUT–reimbursement may be available for support that the other spouse provided that contributed to the gaining of that degree etc

Question 13

Distribution of martial property

Answer 13

Once categorized–court equally distributes the martial property
-courts are allowed discretion in deciding equal distribution

FACTORS INCLUDE:
1) income, property, liabilities of each party
2) duration of marriage
3) support obligations from prior marriages
4) lifestyle used to
5) contribution of each spouse via accumulation of marital property

Question 14

Spousal support

Answer 14

lots of discretion here

under UDMA: spouse is eligible for spousal support if
1) lacks property enough for their reasonable needs and unable to support themselves properly through gainful employment OR
2) is custodian of kid and would be inappropriate to work

Once decide YES to support–
Factors include:
-financial resources of party seeking
-time needed for spouse to find appropriate job
-duration of marriage
-standard of living
-age/physical/emotional

Question 15

Modification of spousal support

Answer 15

Generally can be modified when there is a substantial change in circumstances making prior order unreasonable

Under UDMA:
-only allowed upon a showing of changed circumstances so substantial–makes prior terms unconscionable

Question 16

Child Support

Answer 16

ABSOLUTE OBLIGATION to support your kids

Every state must have guidelines re support:
1) consider the income of the non-custodial parent
2) provide for the child’s healthcare needs AND
3) be based on a specific formula/criteria

Question 17

Modification of Child Support

Answer 17

Generally only when there is a substantial change in circumstances making prior order unreasonable

UDMA: only permitted under showing of changed circumstances so substantial and continuing to make terms unconscionable

Court that originally made the order has continuing jurisdiction to modify so long as the state remains the residence of either parent or the child

Question 18

Child Custody [determining]

Answer 18

Best Interests Standard: courts generally determine based on the best interests of the child

Courts consider multiple factors

When determining custody between parent and 3rd party–it is presumed that custody with parent is in best interest

Question 19

Modification of Child Custody

Answer 19

Parent must show that:
1) circumstances have substantially changed
2) modification would be in the child’s best interests

State that ordered has continuing jurisdiction

Question 20

Un-Married Cohabitant Rights

Answer 20

Economic Sharing:

-most states an express contract (written or oral) is enforceable as long as the economic sharing is not in payment for sexual services

Question 21

Right to Control Child’s Upbringing

Answer 21

Parents have a fundamental right to direct their child’s upbringing

-generally courts will not interfere unless well being is endangered

Question 22

Adoption

Answer 22

Statutory procedure that terminates the rights of the biological parents + establishes rights of the adoptive parents