domestic relations flash cards

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prenups: 1) freely made agreement
2) acknowledged and in writing (SOF)
3) cant preagree on duration of marraige
4) cant waive support so poorer party is a public charge
5)Only enforceable if marraige occurs

NO SEPERATE ATTORNEY REQUIREMENT
non-marital children (bastards): rights in tort: can recover for wronful death of father or mother AND father or mother can recover for childs wrongful death
non-marital child: rights inhertance: can inherit from mother

can inherit from father if: 1)blood test,
2)filiation proceedings, 3)clear and convincing evidence of paternity and father openly acknowledges,
4)father signed an acknowledgement
non-marital child: workers comp and welfare: can share in the benifits (state cant bar)
nonmarital child: must be supported by parents

cant escape by mother saying she was on the pill

state must support if neglect or cant pay
Getting married: capicity: bigamy - one party already in marraige (nulity)

incest- lineal blood relations, including half blood (first cousins, great aunt uncle, adopted and step relations OK) (Nulity)

Age - must be 18, 16 with parents' consent, 14 with parents consent and courts

mental capacity - if recover and stay in marriage, then Defense to annulment

fraud - lied about vital element (sexual stuff, religion) 3 year SOL

physical incapacity - impotency or other defect = no sex
spousal support: fair and reasonable for both parties

married ppl are seperate legal persons can contract with each other, laible for torts, etc
children: termination of parental rights: without judical action - upon
1) minors marriage
2) surrender to adoption agency
3) life imprisonment of parent

judicial termination - 1)abandonment
2)mental retardation
3)permanent neglect
4) severe or repeated child abuse
clear and convincing evidence

neglect is: 1)child near or impending danger, and 2) parent did not act as a reasonable parent would

abandonment: 6 months without effert to see when could
children: custody: no maternal referece

biological parents get presumption

custody is alterable in future

childs home state is sole place where custody rights are adjudicated (6 consecutive months lived)
children: adoption: religious matching

gay lovers can't adopot (must be legit parent/child)

consent of child if over 14

consent of parents: if adoptee under 18

parental consent not required if:
parent surrendered child to agency

parent abondoned child (6 months without contact)

parent neglects (1 year without meaning substantial contact)

if not marital child (fathers rights to consent) : father's rights determined by his continued responsibility:
acknowledgement of paternity, payment of birthing costs, steps taking to establish legal rights, shown commitment to child). Father must be willing to assume custody, not just block adoption.
Children: support: obligation through 21 regardless of marriage

amount set by guidlines (standard of living in intact family, heath of child, tax consequences, financial resources of parents)

modification - more flexable than alimony, sub. and unforseen circumstances

college edu. if court determines academic ability, parents financial ability, and standard of living, so warrant

best interests of child, fair and reasonable
Void Marraiges: declaration of nulity: Incest, Bigamy

cannot be ratified

a complete nulity even without court order

any interested party may seek annulment

subject to collateral attack (probate proceeding)

DEFENSES: impediment does not exist (if removed than becomes voidabe, and those defenses apply)
Voidable Marraiges: annulment: Nonage

mental defects

physical incapactiy

wrongful consent (fraud, duress, force)

5 years incurable mental illness

EFFECT: can be ratified

valid until annulment declaration

only spouses may seek annulment (in in some cases parent friend guardian)

no collateral attack

DEFENSES: impediment does not exist

ratification (continuing in relationship after divorce)

laches

estoppel

SOL passed (default 6 year, 5 year for lack of physical capacity, 3 year from time of discovery of fraud)
seperation: matrimonal action that does not terminate marraige, adjudicates rights by court decree

keep spouse tag, good for tax, etc

can servive divorce (presumption is that they do)

additional ground of failure to support (not in divorce)

P misconduct is complete defense

SOL is 5 years from time ground arose (date of discovery is adultry) ongoing if abandonment
divorce:: right to jury trail of facts needed to establish grounds

grounds:

cruel & inhumane treatement: physical or mental abbuse that endagers well being of spouse, subjective analysis, continued cohabitation not complete D just factor

abandonment: must show
1)voluntary departure
2)without the consent of P spouse
3)wihtout justification
4)intent not to resume cohabitation
(must be 1 year for divorce, no minimum for separation)
constructive (refusal to have sex, change locks, etc)?

adultry - deviant or actual sex with other than spouse
spouse can testify: deny it, rebut denial, testify as to fact of marraige. thats it

defense against adultry:
1) unclean hands (other spouse committed divorcable adultry)
2)condonation - forgave (knowledge and continued cohabitation)
3) connivance - set up

3 years consecutive imprisonment

CONVERSION DIVORCE: no fault:
1) formally seperated for 1 year (court order, or signed written agreement)
2)cannot cohabitate (must be voluntary and free of duress) with intent to reconcile (fling ok, unless court order)
Dissolution for unexplained absence: treat spouse as dead if missing for 3 years.

dilligent search, publish for 3 weeks in english paper, party must have lived in NY for 1 year or NY be matrimonial domicile
date of commencedment of action EDL: july 19th 80. if seperation agreement pre-edl converts to a divorce post-EDL, then pre EDL principals
divorce: property distribition: (fault not considered)

classify then distribute

Seperate Property is:
1) assetts owned prior to marraige
2)gifts/inheritance received in sole or seperate name
3) agreed by spouses as seperate
4)personal injury comp.
5)passive appreciation (stock increase)

Marital Property: everything else earned and recieved during marraige, title doesnt matter (includes education degrees and vested pension)

Judge allocates by using equitable descresion - longer the marraige, closer to 50/50, look towards efforts each took in allocation
divorce: spousal matainance: standard is: fair and reasonable considering all factors (tax, kids, fault, earning power)

modification: sub. change in curcumstances (looses job, gets great job) (if seperation agreement need extreme harship to change)

termination: death(agreement to continue payor estate) remarriage (or living with another holding out as H & W)

arrears not reduced to final judgment can be modified
child support payments: basic formula: percentage of income plus total number of kids, then prorates based on respective incomes of parents

statutory factors: adjust noncostodians share if unfair by statutory factors, including
1. intact standard of living
2. visitatin expenses
3. disparity of incomes

self-induced reduction of income (quit job) not sufficient to reduce $$ awards

arrears cannot be reduced or modified
child custody: best interests of child - neither party has prima facia right, agreement only taken into account

biological parents get preference over 3rd parties (unless unfit)

general right to visitation, grand parants if established relationship

modification: can be annulled , modified, on notice motion. increase support request granted of shown:
1) sub. change warranting an increase, 2) in childs best interest
seperation agreement: "incorporate and servive": 1. either can be enforced (seperation agreement or divorce decree)
2. post EDL midfication of support provision:
a. standard extreme hardship
b. if court modifies, cant sue on that provision
seperation agreement: "merged": 1) agreement no loner exists: decree governs

2) post EDL modification of support provision: substantial change in circumstances
seperation agreements: contract principals apply: 1)freely made
2) dont violate pp
3) parties seperate and stay that way ( or nullify seperation agreement)
NY Bilateral Foreign Country/Sister State divorces: NY gives full comity to foreign divorces

Sisterstate:
1)both spouses appaered in court
2)NY recognizes
3)no colateral attack
NY Ex-Parte foreign divorces: no comity to foreign divorce

sister state: valid, but allows collateral attack on issues of weather rendering court had jurisdiction
FF&C: child support: state level: UIFSA, every state must defer to childs home state

federal level: every state gives full faith and credit to support decree of another state (FFCCSOA)

federal crime under CSRA to not pay 5000k or 1 year behind
FF&C:child custody: PKPA (Parental Kidnapping Prevention Act)

court only has J if home state of child (lived 6 months before litigation)

if no home state: sub, contact with child, AND sub. evidence located

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Number of cards 28