Termination of Marriage

Question 1

5 ways to terminate a marraige

Answer 1

1. Declaration of nullity (void for lack of capacity)

2. Annulment (voidable for capacity issue)

Question 2

1. Declaration of nullity def? 2. 2 reasons for lack of capacity?

Answer 2

1.One party lacked capacity at time of marriage, rendering marriage void.
2. (A) Bigamy = void b/c no capacity
(B) Incest = void (can marry 1st cousins)

Question 3

Annulment: def? Reqs?

Answer 3

1. Marriage VOIDABLE FOR CAPACITY ISSUE –> reqs judge granting annulment before you leave marriage

Question 4

Grounds for anullment: 1. Mandatory or waivable? 2. What are the grounds (6)?

Answer 4

1. Grounds for annulment are WAIVABLE if other spouse co-habits after discovery
2. (A) Non-Age (party annulment in discretion of court, and you waive if you cohabit past age 18
   (B) Mental incapacity at time of marriage (mental illness or developmental disability) -> waived if cohabit after regaining mental capacity
   (C) Duress -> waived if you cohabit post-duress
   (D) Fraud -> misrep or concealment that GOES TO VITAL OR ESSENTIAL ASPECT OF THE MARRIAGE (intentional lies about religion or ability to conceive or being whore)
   (E) Incurable physical incapacity to have safe, normal sex (not about procreation) (bring this one within 5 years of marriage)
   (F) Five years of insanity (3 ct appointed Drs agree) - Can’t waive this one

Question 5

1. Stat of lim to bring annulment action?

2. Jury trial for annulment?

Answer 5

1. 3 years from date you find out.

2. No jury trial.

Question 6

GROUND FOR ANNULMENT for misrepresentation or concealment about money, property, or social status?

Answer 6

No

Question 7

Legal separation is a procedure that allows:

Answer 7

Live separate from spouse & adjudicates legal & child custody issues BUT LEAVES THE MARRIAGE INTACT.

Question 8

Separation maintains healthcare rights through spouse’s employer, tax benefits, and ___________ upon ____________

Answer 8

Separation preserves pension rights of widow upon other spouse’s death.

Question 9

1. Separation cases done before jury?

2. Duiration of separation order?

Answer 9

1. No jury for separation cases

2. Can be temporary or permanent

Question 10

5 grounds for separation

Answer 10

1. Cruelty (physical & mental abuse) endangering well-being of spouse rendering cohabitation unsafe or improper
2. Abandonment (reqs D spouse UNJUSTIFIEDLY, VOLUNTARILY departs marriage w/o P spouse’s consent with no intent to return - abandoned needn’t require leaving home, can include not boning)
3. Adultery (defenses: A. you cheated too; B. condoned/waived by spouse via cohabitation; C. connivance = spouse entrapped me; D. 5 year stat. lim) reqs 3rd party proof, not just cheated-on spouse
4. 3 years of consecutive imprisonment
5. failure to support

Question 11

3 things you can do in response to physical abuse in marriage.

Answer 11

1. separation
2. divorce
3. Protective order from family court on domestic violence grounds

Question 12

Divorce: 6 grounds (1st four same as legal separation grounds)

Answer 12

1. cruelty
2. abandonment (of a full year)
3. adultery
4. 3 years of consecutive imprisonment
5. CONVERSION divorce: 2 steps -> A. separation for a full year (litigated or by notarized K), B. convert it to divorce. During K separation, a reconciliation w/ intent to stay married = rescinded K separation.
6. NO FAULT: marriage IRRETRIEVABLY BROKEN DOWN FOR > 6 MONTHS. Proven by one party so testifying under oath. Divorce not final until all collateral issues are decided (kids, property, alimony).

Question 13

Dissolution of marriage used when? Reqs?

Answer 13

When spouse has DISAPPEARED without any tidings for a PERIOD OF FIVE YEARS
Reqs: 1. diligent search; 2. post request in english newspaper that spouse return for 3 weeks; 4. P lives in NY for year or NY is matrimonial domicile.

Question 14

1. Automatic orders as of filing of complaint for termination of marriage proceedings do what?
2. Persons seeking divorce each must disclose?

Answer 14

1. Orders automatically freeze financial status quo (can’t move or transfer assets)
2. Current financial state/assets etc.

Question 15

Alimony in NY called?

Answer 15

Alimony called “MAINTENANCE”?

Question 16

1. Maintenance while case is pending calculated by?
2. When is post-judgment maintenance allowed?
3. Ct may consider what factors?

Answer 16

1. Presumptive award based on income, which ct can adjust.
2. When there is need by the recipient spouse.
3. 19 factors + whatever is just and proper, e.g. marital fault (abuse, cheating), age and health, earning capacity, property owned by each spouse post-marriage, who’s caretaker of kids/elderly.

Question 17

Presumptive that poorer spouse should get attorney’s fees paid for divorce?

Answer 17

Yes. Rebuttably entitled to attorney’s fees.

Question 18

Modification of maintenance. 1. Who can ask? 2. Reqs? 3. Can modify arrears? 4. When can you get separation agreement modified?

Answer 18

1. either party can ask for change
2. SUBSTANTIAL CHANGE of circumstances, e.g. payor got laid off.
3. Can only modify prospectively
4. Showing of EXTREME HARDSHIP

Question 19

Termination of maintenance by 3 means

Answer 19

1. Death of either party
2. Recipient remarries or cohabits with another person
3. By K, e.g. for a period of 10 years.

Question 20

Enforcement of maintenance or child support payments by 6 means

Answer 20

1. seize bank assets
2. wage reduction order
3. take driver’s license
4. take away professional license
5. take away recreational licenses (hunting)
6. put in jail for contempt of court

Question 21

Property division in NY by ___________.

Answer 21

Equitable distribution (NOT community property).

Question 22

Equitable Distribution is a two step process: 1. A. B. C. 2.

Answer 22

1. CLASSIFY ASSETS into either: A. husband’s property; B. wife’s property; C. marital assets (includes professional degree earned during marriage (but don’t double count with maintenance) stock options, pension)
2. DISTRIBUTE ASSETS: each keeps his/her separate property; then divvy up equitably considering loss of inheritance rights, loss of health insurance, and need for child custodian (DON’T CONSIDER MARITAL FAULT UNLESS EGREGIOUS, SHOCKS CONSCIENCE, & EXCEPTIONAL).

Question 23

Types of things that qualify as “separate property” (rather than marital) for classifying assets in divorce - 5 types

Answer 23

1. Pre-marital assets
2. Bequest or gift to one spouse in his/her sole name
3. Property spouses agree to treat as separate
4. Personal injury compensation for pain & suffering
5. Appreciation in value of items in 1-4 unless appreciation is due to other spouse’s active effort – if spouse stays home while dude works at his small business, then she is giving active effort toward appreciation of business.

Question 24

Biological parent and child can be legally separated to facilitate adoptions –> TPR proceedings: 1. def; 2. adjudicated where? 3. poor parent gets lawyer? 4. standard?

Answer 24

1. Termination of parental rights
2. adjudicated in family court
3. poor parent gets counsel
4. CLEAR AND CONVINCING EVIDENCE

Question 25

5 grounds for TPR

Answer 25

1. ABANDONMENT > 6 MONTHS not communicating/visIting child 2. PERMANENT NEGLECT: child already in state care and parent for > 1 YEAR doesn't maintain contact or plan future w/ kid = not getting on track 3. ABUSE: physical or sexual 4. MENTAL ILLNESS/DISABILITY making parenting impossible 5. MURDER CHILD'S SIBLING

Question 26

NY adoption: 1. who can adopt? 2. Legal consents required? 3. What do adoptive parents do as process to prove quality? 4. Trial period?

Answer 26

1. single person can adopt; two cohabitants can adopt 2. biological parents or custodian of minor; consent of adoptee over 14; state consent if child is ward of estate 3. Home study, interviews, etc. 4. Trial period of 3 months before judicially-blessed adoption, which wraps it up.

Question 27

Biological parents support child through age ___ or through _____ if kid has ability.

Answer 27

through 21, unless kid has ability to go to college, in which case it's extended through college

Question 28

Courts don't get involved in support issue w/ parent who lives with kid. Non-custodial parent has to pay in 2 principal cases:

Answer 28

1. post-divorce non-custodial parent | 2. non-marital child after filiation proceeding

Question 29

1. Guidelines for child support required?

Answer 29

1. Chart based on percentage of combined parental income and # of children. Non-custodial parent pays % of child support based on his % of total earnings.

Question 30

When can child support be modified? 3 situations

Answer 30

1. SHOWING OF A CHANGE OF CIRCUMSTANCES 2. 3 years since last judicial review 3. either parent's income goes up or down 15%

Question 31

counsel given to poor parent in civil contempt proceeding?

Answer 31

No entitlement to appointed counsel if there are substitute procedural safeguards: what are the issues, give person form, let him respond re financial status --> structure proceeding so indigent person knows the issues and he can defend himself

Question 32

1. Standard for determining child custody? 2. What factors?

Answer 32

1. BEST INTERESTS OF THE CHILD STANDARD ("BIC Standard"). 2. Non-exhaustively: health (phys & mental) of parents, education & finances of parents, history of domestic violence, criminal activity, parents' new live-in partner, keep siblings together. For joint custody, see if parents get along and live near each other.

Question 33

Non-parent vs parent custody battle: presumption for custody? Standard for non-biological parent (2 options)?

Answer 33

Presumption favors biological parent. Non-parent must show 1. non-fitness of parent; or 2. extraordinary circumstances

Question 34

Must get _______ before parent relocates with child. To get it, you have to show ______

Answer 34

Get court order for relocation. Show it's BIC to relocate.

Question 35

Must get _______ before parent relocates with child. To get it, you have to show ______

Answer 35

Get court order for relocation. Show it's BIC to relocate.

Question 36

Non-custodial parent gets visitation even if child support payment missed. To not grant visitation rights puts custodial parent _______

Answer 36

in contempt of court

Question 37

Do non-parents have visitation rights for kid in custodial parent's possession? Generally? Exception?

Answer 37

Generally, no visitation rights ABSENT SPECIAL CIRCUMSTANCES.

Question 38

Conflicts of law: 1. Will NY recognize foreign marriage? 2. Will NY recognize divorce from elsewhere?

Answer 38

1. Yes, unless contrary to NY law (bigamy); 2. A. Yes re each other state, and res judicata re every divorce topic. B. Yes re international divorce if litigated, not honored if ex parte.

Question 39

Conflicts of law: 3. NY honors out of state support order? | 4. Child custody orders from other states honored if _____?

Answer 39

3. Support orders honored across US states; 1st state has continuing exclusive jur. 4. If kid lives there with parent for over 6 months.