domestic relations 2
Terms
undefined, object
copy deck
- agreements b/w cohabitants
- NY will enforce an EXPRESS agreement, if consideration other than sex; will not enforce an IMPLIED agr / won't "do equity"
- ante-nuptial agreements
- can deal w/anything; enforcement subject to SoF, duress, unconscionability; can't pre-agree on divroce or permission to engage in conduct that would be grounds (adultery)
- establishing paternity
- mom or child thru guardian or state of NY brings a filiation proceeding b/f kid hits 21; SoP: C&C; if mother testifies to sex w/D, no corrob req; if D testifies that mom had sex w/other, need corrob
- gifts in contemplation of marriage
- can be recovered back (engagement ring, not xmas gift)
- duties of being married
- "reciprocal duty to provide fair and reasonable support"; the other spouse will be liable for debt incurred for necessaries
- 5 ways to terminate marriage, overview
- declaration of nullity; annulment; legal sep; divorce; dissolution
- declaration of nullity
- bigamy or incest -> technically, the declaration is not necessary
- reasons for annulment, overview
- nonage; mental incapacity at time of marriage; duress; fraud; physical incapacity; incurable insanity
- nonage
- reason for annulment; must be > 18, or above 14 and permission; if you continue to cohabitate after 18, you lose
- mental incapacity at time of marriage
- reason for annulment; "want of understanding" - usually filed by family member on behalf of crazy mother; but if you regain sanity and continue to cohabitate, it's waived
- duress
- reason for annulment; shotgun wedding; but waived if you continue to cohabitate after threat is gone
- fraud
- reason for annulment; one fiancee lied or concealed "information that goes to an essential aspect of marriage" ; waivable; misrepresentation about religion; lying about sex or procreaton; BUT NOT misrep re: money
- physical incapacitation
- reason for annulment; incurable phys condition that prevents safe and normal sexual intercourse; 5 year SoL; no jury trial
- incurable insanity
- reason for annulment; five years of incurable insanity first manifesting after the wedding; need 3 ct appointed physicians to concur
- SoL for annulment
- default is 6 years if no other specified
- legal separation, overview
- not b/f jury; grounds: cruel & inhuman treatment; abandonment; adultery; imprisonment, 3 years; failure to support
- abandonment
- grounds for sep; must be (1) voluntary deptarture; (2) w/o consent; (3) w/o justification; (4) no intent to return; for any period of time; constructive desertion counts (sofa or refusal to have sex)
- adultery
- grounds for sep; defenses: recrimination (dirty hands -> deny relief to P who is also having an affair); condonation (he condones the cheating); connivance (P entrapped her); 5yr SoL from *discovery* of cheating
- testimony on adultery
- CANNOT testify to the adultery even if saw it; so normally 3rd party or circumstantial evidence; prostitutes and private detectives have to be corroborated
- grounds for divorce
- cruel & inhuman treatment; abandonment (must be 1 year); adultery; imprisonment (3 yrs); [NOT failure to support]
- conversion divorce
- after sep order or sep agr, living apart for 1 year;
- separation agreement
- no fault; after 1 yr, conversion divorce; no duress, in writing (SoF), must be notarized
- recission of sep agr
- agreement is rescinded by cohabitation w/intent to reconcile, which starts clock ticking (but random sex doesn't count)
- material breach of sep agr
- precludes conversion divorce
- dissolution
- if spouse disappeared (i.e. dead); need evidence of missing w/o TIDINGS for 5yrs; need diligent search & publication
- residency reqs for marriage termination
- none if both live in NY and grounds in NY; if one lives in NY for 1 yr PLUS factor (married in NY; or lived in NY as spouses; or grounds in NY); or if one lives in NY, then 2 yr residency req
- personal jurisdx for divorce, sep, annul
- none needed of D!
- personal jurisdx for economic issues
- NY domicile; OR matrimonial long arm (once lived in NY; P was abandoned in NY; or any claim under an agreement governed by NY State law)
- service of process for matrimonial
- must be personal service, unless ct order;
- jury for marriage tertmination
- always, execpt lawsuits for separation or annulment based on physical incapacity
- IIED b/w spouses
- none
- prof resp for DR matters
- may not take a security interest in CL's house; lawyer can't have sex w/DR clients
- maintenance
- (alimony); temporary while petition is pending; then permanent, based on NEEDS of spouse;
- conversion divorce & maintenace
- parties can incorporate provisions into sep agreement and court will usually enforce; but close scrutiny if overreaching
- modification of support order
- can petition for modification if SUBSTANTIAL change in circumstances; higher burden if paying pursuant to K instead of court order - need EXTREME hardship
- what can be done if arrearages
- seize assets; attach wages; take away driver's or professional licenses; also contempt
- separate propery
- assets owned prior to marriage; bequests or gifts in sole name; any property they AGREE is separate; personal injury compensation; passive appreciation of these (not active)
- marital property
- doesn't matter how it is actually titled, unless agree/treat; a professional license or degree is marital property;
- equitable distribution of marital property
- don't consider fault; otherwise, ct can do anything it wants
- surrogate motherhood
- contracts are illegal; seen as abby selling
- who can be adopted?
- anyone if goal is to establish a bona-fide parent-child relationship; if under 18, need consent of parents; if > 14, need adoptee's consent too
- termination of family rights
- need C&C evidence; grounds: abandonment, neglect, abuse, mental incompetence
- child support
- parents have duty to support -> 21; or thru college if smart kid, rich parents; support is conditioned on obedience to reasonable demands of parents
- child custody standards
- "best interests of child standard"; wishes of child if > 12; health of parents;
- non-parent petition for custody
- only if strong showing of (1) unfitness of natural parent or (2) extraordinary circumstances (e.g. w/grandparents for > 2 years)
- visitation
- almost never denied; parents can veto a grandparent visitation order
- recognizing foreign marriages
- if valid where done, valid in NY; unless violates strong PP
- recognizing out of state divorce
- bilateral - if both spouses participated, that's valid in NY; ex parte - if only one participated, prima facie valid in NY if D was served with process; out of country recognized if bilateral, NOT if ex parte
- UIFSA
- uniform interstate family support act; state that entered orig child supprot order has exclusive jurisdx until ALL parties leave the state;
- UCCJEA
- unifrom child custody jurisdx & enforcement act - you can't forum shop for child custody; all determinations go back to the issuing state (the home state of child);