Domestic Relations

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Separation agreement: Separation agreement must be written, freely made, acknowledged and must file with the court at some point before you go for conversion. Recession can occur when the parties co-habit with the intent to reconile. Mere sexual relations will not vitiate a separation agreement. 3) Does not affect court-ordered separation; B) Material breach of any provision precludes getting conversion divorce
Equitable Distribution: Under NY law, the division of property in divorce actions is governed by the "equitable distribution" law. Under equitable distribution, martial property is distributed equitably between the parties to a divorce action considering the circumstances of the particular case.
Procedural issues for matrimonial actions - SMJ: ALL in NYSC. For SMJ - ONE spouse must be domiciled in NY, AND residency requirements satisfied by domiciled spouse - three ways: 1) Both parties reside in NY AND grounds occurred in NY, no min residency requirement → Immediate access to NY courts; 2) Only one party live here: AND A) They ever lived here as spouses; B) they married here; or C) The grounds occurred here; 3) One party living here - need 2 years of residence; 4) Must make full financial disclosure of their worth
Requirements for a Prenup Agreement: A prenuptial agreement must be 1) freely made; 2) in writing; 3) signed by both parties; 4) acknowledged (Notarized);and 5) parties must actually get married. Contracts requiring dissolution of marriage or providing for procurement of grounds for divorce are invalid. The contract must also have been fair and reasonable at the time of the making of the agreement and not unconscionable at the time of the final divorce judgment. There is 3 year SOl for bringing an action or claiming a defense arising from the contract.
Physical Incapacity: Physical incapacity is incurable physical condition that makes it impossible to have safe and normal sexual intercourse. 1) This is NOT about procreative ability - ability to have sex; 2) This presupposes that the couple learns of the problem on the wedding night; 3) MUST BE incurable; Mechanical issue - not about affection; Claim must be brought w/n five years of the marriage. No jury trial - too embarrassing.
CONFLICTS: NY: marriage valid where contracted is valid here. Very narrow exception for violation of affirmative prohibitive law of NY.
Cruel and Inhuman Treatment: A defendant's conduct that so endangers the plaintiff's physical or mental well-being as to render it unsafe or improper for the plaintiff to cohabit with the defendant is a ground for separation. In determining if cruel and inhuman treatment exists, courts will use a subjective test and consider the effect of the defendant's conduct on the particular spouse and the length of the marriage.
Marriage Ceremony: engage solemn or serious promises to take on their new status as spouses in front of: A) Officiant - member of clergy, civil universe empowered to administer an oath, ship captain; B) Witness - 2 Ws by custom, best man and maid of honor C) Solemn declaration
Filiation Proceeding: Filiation proceedings are proceedings used to establish parental status. These proceedings are brought in Family Court by either the mom, child acting through guardian or State of NY, or putative father. The proceeding must be filed before age 21. Parental status must be established by clear and convincing evidence. A mother's uncorroborated allegations of paternity may be introduced as evidence in paternity proceedings while a respondent's allegation of access by others may require corroboration. Essentially mechanical now - DNA admissible → Either party can ask for DNA test-if the DNA conclusive shows that father is parent then case closed. However, if 95% probability of father - burden goes to D to negate. After litigation - D father → He pays child support.
Defenses to Adultery: Defenses to adultery are: 1) Recrimination (ie th plaintiff is also guilty of adultery; 2) Condonation (i.e. the parties voluntarily cohabit with a nonmartial party with knowledge of the adultery; 3) Connivance (entrapment) or 4) the plaintiff fails to commence an action within five years of discovering the offense.
Effect of an Annulment: The plaintiff must prove that there has been no
Adoption: Most common. ANYONE can adopt provided you obtain all necessary consents and are attempting to establish a true parent-child relationship: 1) Married can adopt as co-petitioners; 2) In NY - single person can adopt; 3) Gay couple trying to adopt each other - impermissible → not true relationship. Investigate prospective adoptive parents - Interviewed; Fill out questionnaire; Home visit; Effort in NY to engage in religious matching; Trial period - then decision to establish parent-child relationship
Dissolution action: To dissolve a marriage based upon absence, the spouse must state 1) the spouse has been absent for five successive years; 2) the spouse is believed to be dead; 3) a diligent search has revealed no evidence that the spouse is alive; 4) publish a request that your spouse return for 3 weeks in an English language newspaper and 5) spouse must have resided in NY for ≥1 year when bringing action and NY was the matrimonial domicile when the absent spouse disapperaed.
What you need to get married: You need all the capacities that would be necessary to enter an ordinary commercial K: 1) Sound MIND; 2) Suitable age.
Abandonment: To make out a cause of action for divorce based upon abandoment: 1) voluntary departure by one spouse from the other; 2) without justification; 3) without intent to return and 4) for a period of more than one year before the commencement of the lawsuit. (do not need if based on separation)
Subject Matter Jurisdiction: For the court to have jurisdiction, the defendant must have properly been served and there must be a statutory basis for jurisdiction.
Unmarried Co-habitants: Unmarried co-habitants can enter into a contract where one party agrees to pay the other party a lump sum upon break up. The contract can include consideration for household labor in return for economic consideration on event of break up. A court will not imply a contract between them. The agreement is not enforceable if the consideration is for sex.
Equitable Estoppel for the Child: If you have assumed the role as father, then later on may not allow you to deny the child. Can only have an estoppel, if the child has relied on the father as showing he is father, to the determient to the child.
PARENTS' right to w/o consent lost: four ways: A) Parent has surrendered child - putting up for adoption; B) Mentally incapacitated and unable to care for child - would be an empty gesture, you don't have the capacity to consent; C) If you have abandoned = ≥6 mos. w/ no contact w/ child.
Annulment: Under annulment, a marriage may be voidable, but can be waived by not acting promptly. The grounds for an annulment are: 1) Nonage; 2) mental defects; 3) physical incapacity (for sex); 4) wrongfuly obtained consent (force, duress, fraud); 5) five years' incurable mental illness. A cause of action of annulment cannot be sustained merely by the unsupported declarations of a party.
Termination of Maintenance: Maintenance payments terminate upon the death of either party, marriage by the receipent, or modification of the final judgment. To enforce maintenance payments, a court can enter an order garishing wages, intercepting tax refunds or revoking driver's license.
What can spouses testify to in Divorce/Separation Limit on what spouses can testify to: only testify: I) To prove they are married; II) To negate or disprove adultery; III) To deny or disprove defenses <> (Opp usually = business trip/Disposition = Love notes, exchange of gifts); IV) ≥3 years of consecutive imprisonment; V) Failure to support - Get separation + support
Consents for adoption: 1) Minor child adoptee - Both biological parents must consent; 2) Adoptee >14 yrs - Need consent of adoptee; 3) Any other party has legal custody - That person has to consent.
Three follow on issues for child support: 1) Modification - Petition and show change of circumstance <> Child is entitled to share in parent's good fortune; 2) Termination - Only when child reaches age of majority or if someone dies; 3) Enforcement
Visitation: Non-custodial parent gets visitation - ALMOST NEVER denied: 1) Crucial and fundamental RIGHT of the parent; 2) ONLY lose when pose a direct threat to the health of the kid; 3) NOT contingent on paying child support <>
Actual Distribution of the Property: A court can order distribution of the property either through in kind or lump sum. One party can write a check or go through assets and deed them over.
Adultery: Adultery is a voluntary act of sexual or deviate sexual intercourse performed by the defendant with a person other than his pouse. To state a claim for divorce on grounds of adultery, it is necessary to allege opporunity, inclination, and intent to commit adultery. Adultery must be proven by a fair preponderance of the credible evidence.
Visitation requests by non-parents: NY has grandparental visitation statute. SCT: Parents have right to make decision about how children raised - Due process → Co of A: statute requires special weight to wishes of parents. Non-parents: satisfy burden to show SPECIAL CIRCUMSTANCES.
Marriage License: 1) Go to clerk; 2) 24 hr waiting period; 3) Expire in 60 days; 4) Failure to get does not affect validity of the marriage - directory requirement, not obligatory as a condition of the marriage
Separate Property: Separate property includes: all property acquired before marriage; property acquired by bequest, devise, descent, or as a gift to one spouse; compensation for personal injuries; property acquired in exchange for or by increase in value of separate property (less the contribution by the other spouse); and property described as separate by written agreemnt of the parties. A spouse retains her separate property, while an increase in value of separate property of one spouse, due to direct or indirect contribution of the other spouse, will become martial proeprty.
Relating to procreation or sex: Procreation - lie about your inability to have children; carrier of serious medical problem; lie about paternity of baby; family size (distinguish lie from change of heart). Sex: Sexual history in a big way (like used to be a prostitute); sexual preferences (BDSM type stuff - waivable)
Fraud relating to religion: Lie about your religion; level of observance; intentions about upbringing of children
Divorce-(Fault): Grounds: 1) Cruel or inhuman treatment; 2) Abandonment- >1 year; 3) Adultery; 4) ≥3 yrs. consecutive imprisonment.
Annulment-Nonage and Mental Defects: Not automatic, in discretion of the court: 18 to marry, 6 or 17 - you can get married w/ parental consent; 2) 14 - 16 - consent of parents + consent of a judge; 3)14 - No marriage; 4) Incapacity gone when you reach 18 → Waived.
Legal separation (4 Grounds-CAAIS): Legal separation formalizes a separation. It is when one spouse sues the other and asks for; a) judicial permission to live separate and apart; PLUS b) and some sort of collateral remedy. Leaves parties married - does not terminate the marriage. NO JURY: Action is tried to the court. Temporary or permanent separation. Grounds: 1) Cruel and inhuman treatment; 2) Abandonment; 3) adultery; 4) ≥3 years of consecutive imprisonment; ) Failure to support - Get separation + support;
Contractual marriage: A contractual marriage requires a license and a written contract signed by both parties, subscribed in New York by the parties and two witnesses, stating the residence of the parties and witnesses and the date and place of marriage and acknowledged by the parties and witnesses before a judge of a court of record of NY State.
Uniform Child Custody Jurisdiction and enforcement act: Under UCCJEA and the PKPA, if a court of another state has made a custody decree, another court may not modify that decree unless 1) it appears that the court rendered the decree did not or does not now have jurisdiction or has declined to assume juridiction, and 2) the "modifying" court has jurisdiction. Generally jursidiction lies in the "home state" of the child. A child's home state is the state in which the child has lived with a parent at least 6 consective months prior to commencement of the proceeding. Parental Kidnapping Protection Act (PKPA).
Maintenance: Maintenance payments are support payments. A court may order maintenance to meet the reasonable needs of a party as determined by the parties' pre-separation standard of living. Court exercises discretion considering relevant factors: 1) Health and age - elderly, infirm, chronic ailment, mental illness; 2) Earning capacities - education, earner; 3) Minor children - implicates ability to work full time; 4) Duration of marriage and standard of living enjoyed during the marriage; 5) Fault - DV, faith, cruelty, abandonment.
Child Born to Unmarried Woman: Nonmarital children are entitled to inherit from mother and father, benefits, sue for wrongful death, and right of economic support. The difference is that there is a presumption that the mother's husband is the father. The nonmartial child might have to litigate to determine the issue.
Artificial insemination: child considered to be a marital child. Anonymous donor - sperm donor has no relationship to the child, provided husband consents, child is treated as biological offspring.
Ceremonial Marriage: Ceremonial marriage is principal way: 1) License; 2) Ceremony; 3) K marriage
Matrimonial Action: 1) Parties were married in NY and either party has been a resident for one year immediately preceding the action; 2) Parties resided in NY as husband and wife and either party is a resident for one year immediately preceding the action; 3) COA occurred in NY and either party has been a resident for 1 year prior to commencement of the action; 4) COA occured in NY and both parties are residents at the time of commencement of the action; and 5) Either party has been a resident of the state for a continuous period of at least two years preceding commencement of that action.
Gifts given in contemplation of marriage for engaged couple: Couple gives each other gifts - you can get it back if the gift was given in contemplation of marriage → Look at the nature of the gift: Engagement ring - get back; Sweater for Christmas - not get back.
Custody: BEST INTEREST OF THE CHILD (BIC) - Application <
Custody Contests btn parent and non-parent: 1) Non-parent contesting: non-parent or parent is still going to litigate on the best interest of the child; 2) Presumption: Best interest is w/ parent; 3) Non-parent show: extraordinary circumstances or parental unfitness
Jurisdiction to enter collateral orders: To enter collateral orders, the court must have personal jurisdiction over defendant spouse for alimony or child support orders.
Marital property: Martial property includes all property acquired by either spouse during the marriage, regardless of the form of title prior to the commencement of any matrimonial action.
Fraud: Misrepresentation of or concealment of information that goes to an essential aspect of the marrigage and that is calculated to decive a reasonably prudent person. This takes place before the marrigage and commited by one of the spouses. If the plaintiff is defrauded party, the annulment action must be brought within three years from when the plaintiff discovred the relevant facts.
Prenuptial Agreement: A prenuptial agreement is a contract in an inteception of marriage. It can relate to inheritance rights, distribution of property, maintenance, and child care, custody, and support.
Duress: Shotgun wedding, incapacity, not free entry. Waived - freely cohabit after duress removed and you remain in marriage.
Modification of Maintenance: A party can seek a modification of maintenance payments by going back to court and showing a substantial change in circumstances. If the separation agreement does not provide for modification, then the party must show extreme hardship. The modification is prospective only.
Annulment-Mental Defects: A marriage may be voidable because a party is incapable of consenting to marriage for lack of understanding. Once the mental incapcity is eliminated and the parties continue to co-habit, then it is grounds for waiver.
Conversion Divorce: Under NY law, a conversion divorce is available where spouses have lived apart 1) for at least one year following the granting of a separation decree or 2) pursuant to a written, filed, and properly executed separation agreement. Upon conversion divorce, agreement may "incorporate and survive" divorce decree if the agreement coexists with divorce decree. Modification of support provision must show extreme hardhip and if the court modifies support provision, can no logner sue on the contract as to that provision. "Merged" into divorce decree, the agreement no longer exists and moficification of support provision must show substantial change in circumstances.
Supporting children: Required from BOTH biological parents through age 21 in NY: 1) Doesn't matter whether parents married, divorced, living together; 2) You can be ordered to continue to support your child past 21 if child is attending college. Generally: child is being supported if living w/ parent. Others who may be liable: 1) C of A holding: doctrine of equitable estoppel as a parent; 2) Non-custodial parent
Non-custodial party who owes support: actual amount of support determined by guidelines. Has a table - looks to parental income, # of children, certain deductions for insurance, property distribution issues → Can depart, but has to state reasons on record
DIVORCE: Out of state NY: 1) Another J - Bi-lateral J, they both participated → NY gives FFC, no collateral attack allows; 2) Ex parte out of state divorce: prima facie valid, can be collaterally attacked by non-participating spouse w/ evidence that participating spouse was not domiciled in the forum; 3) Out of country divorce: normally acknowledged under the doctrine of commity provided both parties participated and provided the divorce was legal under the laws of the country; 4) Ex parte out of country divorce is not given any recognition in NY.
Matrimonial action Pleadings: 1) All pleadings in matrimonial actions must be verified EXCEPT in cases alleging adultery; 2) Process must be personally served unless you get court permission; 3) No default judgments w/o submissions of truth; 4) Must make financial disclosures - records will be kept confidential for 100 years
Surrogate: w/ 3rd p W - Illegal in NY. void by statute, form of baby selling repugnant.
Federal statutes on child custody: FFC for Child Support Orders Act - Requires FFC for previously entered Child support orders. Similar to UIFSA.
Enforcement of child support: 1) Attach property and sell; Wage reduction order and take money; Hold in contempt of court; 2) You can file order w/ IRS - they will intercept refund; 3) Out of state - Uniform statute remedies problem - Uniform Interstate Family Support Act (UIFSA) <> Two things: A) Prevents inconsistent orders- continuing and exclusive J, other states defer; 2) provides for interstate direct enforceability of order - mail to out of state court and they will enforce → Mail to OOS employer and employer obligated to garnish wages
Divorce (No Fault): No fault divorce is the irretribuably broken down of the marriage for a period of at least 6 months provided that one party states this under oath. A no fault divorce will not be entered until all collateral issues such as children are resolved.
Ways to Terminate A Marriage: 1) Declaration of Nullity 2) Lawsuit for annulment 3) Legal separation 4) Divorce 5) Dissolution
Professional responsibility issues: Lawyer must give 3 docs: 1) Statement of client rights and responsibilities; 2) Written retainer agreement; 3) Provide closing at end. MAY NOT take mortgage on house as security. Disciplinary rule - Shall not begin sexual relations w/ client during the course of the lawyer's representation of the client.
Annulment-Five years incurable insanity after marriage: A marriage may be annulled because one party has been incurably mentally ill for five years or more.
Declaration of Nullity: A marriage may be void by reason of incest or bigamy. Parties may walk away from void marriages without court order. Collateral attack is permitted.

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