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Domestic Relations - NY Bar Review 2006


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What are co-habitants and are agreements between them enforceable?
Cohabitants are two people living together and who are intimate

**NY will enforce express agreements as long as there’s consideration other than SEX.

**NY will not imply a contract between cohabiting parties (no palimony in NY)
What is an agreement between engaged couples?
Antenuptual agreement: Contingency plan in case marriage doesn’t work

Usually deals with money issues, can deal with issues of kids, wills, anything can go into this

Real issue is whether agreement will be sustained or challenged at end of marriage – richer spouse will want it sustained, poorer spouse will want to challenge
When will the courts sustain an antenuptual agreement?
1. Has to be in writing, signed by both parties.
2. No duress
3. Can’t be unconscionable – waiver of all economic support is not unconscionable, but is evidence of unconscionability if it would require poorer spouse to go on public assistance.
4. Can’t pre-agree on divorce (can’t say, “we’ll divorce in five years”)

**Antenuptual agreements are only enfoceable if they actually get married

**Divorce does not rescind agreement, for obvious reasons
What are non-marital children and how are they treated?
NY says a child is non marital if child was conceived by and born to parents who never married

Non-marital children have same rights as marital children

Legally entitled to inherit from both parents, can sue for wrongful death, can get financial or economic support from both parents

**Real issue is identifying biological father
What is a filiation proceeding?
1. Brought in family court, brought by biological mother or by child through guardian (can be brought by father or court)
2. Suit can be brought until kid turns 21
3. Standard: clear and convincing evidence that this person is the father of the child
- if mom takes the witness stand and says they had a sexual relationship, the testimony does not need to be corroborated
- If alleged father takes the witness stand and says the mother had sex with other men at the time of conception, this needs to be corroborated
5. DNA evidence can be offered
6. Proceeding’s purpose is to impose on the father a duty to provide economic support
How is DNA evidence treated in a filiation proceeding?
If it’s genetically impossible that this guy could be the father, then it’s conclusive

If it’s a high probability that he’s the father, then that creates a rebuttable presumption that he is

**Burden shifts to father to prove that he’s not the father
What are the heart balm causes of action?
These are abolished in NY, but should recognize them to know that they’re abolished:
1. Breach of promise to marry
2. Seduction of an unmarried female
3. Alienation of Affections
4. Criminal Conversation
5. Jactitation of Marriage
What are the rules for gifts between unmarried couples?
Gifts in contemplation of marriage can be retrieved from fiance
- depends on nature of gift (usually engagement ring)

**Birthday and holiday gifts are not in contemplation of marriage
What do you need to validly get married in New York?
Ceremonial Marriage – need a LICENSE and a CEREMONY

1. License comes from city or town clerk – 24 hour waiting period, and lasts 60 days

2. Solemnization – solemn declaration in front of an officiant and at least one witness

**Common Law Marriage – can’t do it in NY, but NY will recognize legal CL marriage from another state
What are the consequences of being married?
Each spouse owes a reciprocal duty of support:
1. Amount of support is defined as “fair and reasonable” support – usually depends on resources of wealthier spouse
2. To the extent that the poorer spouse will go on public assistance, we will require that richer spouse support to the extent that it will keep you off public assistance
3. During marriage, can bring suit in family court for support
4. Married people keep their separate identities
5. If a spouse incurs a debt as to necessities, there will be liability flowing to the other spouse (like acting as an agent)
What are the five ways to terminate a marriage?
1. Declaration of nullity
2. Annulment
3. Separation
4. Divorce
5. Dissolution
What are is a declaration of nullity?
If one party to the marriage lacked capacity and incapacity is so severe that it made the marriage void – the marriage never existed at all

There are two grounds for this:
1. Bigamy – if you have a spouse who is still alive and there’s no divorce, no capacity to enter into a new marriage – if one spouse lies about already being married, then the marriage is still void.
2. Incest – can’t marry close relatives – no capacity

**In cases where marriage is nullity because of bigamy or incest, don’t need to go to court to get declaration of nullity – it never existed to begin with
What the rules for incest?
1. If you lie about it or are mistaken (accidentally married your sister), can get a declaration of nullity
2. In NY, can’t marry anscestors, descendents, siblings of whole or half blood, or lineal relatives up and down one generation (can still marry first cousin – ew)
3. Incestuous marriage is not only a nullity, but you can go to jail for 6 months because of it
What are the six grounds for annulment?
1. Non-age
2. Mental Capacity
3. Duress
4. Fraud
5. Physical Incapacity
6. Five Years of Incurable Insanity
What are the rules for an annulment based on non-age?
Must be 18 in NY
1. If you’re 16 or over but under 18, can get married with consent of both parents
2. If you’re over 14 but under 16, can get married with parental and judicial consent 3. If you’re under 18 and you continue to cohabit until 18th b-day, can’t get annulment – ground is waived

**Annulment is under discretion of the court
What are the rules for an annulment based on mental incapacity?
You have a wont of understanding – didn’t understand what you were doing

**Usually brought by family members

**If you regain your sanity and you freely co-habit, the ground is waived
When is the annulment ground of duress waived?
If you freely cohabit after the threat is removed
Explain the fraud grounds for annulment of a marriage
It means one fiance, prior to marriage, lied about or concealed info that is ESSENTIAL TO MARRIAGE

**Even if you don’t waive the fraud grounds, you have SOL of three years to get the annulment
What are the settled cases in the fraud grounds for annulment?
1. Misrepresentation about religion: lie about what religion you are, intention to convert after wedding, or upbringing of children, or how observant you are – GROUND FOR ANNULMENT – waivable

2. Lying about sex or procreation – ability to have children – GROUNDS FOR ANNULMENT – includes lying about desire to have kids, who father of child is, SIGNIFICANT sexual past, sexual proclivities

3. Misrepresentations about money – NOT GROUNDS FOR ANNULMENT
Explain the physical incapacity needed to get an annulment.
Incurable physical condition that prevents safe & normal sexual intercourse

Presupposes they didn’t do it before getting married
Condition must be incurable (not just performance anxiety)

Talking about ability to perform sexually, not ability to procreate.

**Must be brought within 5 years of marriage, and no jury trial for this
Explain the "five years of incurable insanity" grounds for an annulment.
Five years of incurable insanity first manifesting itself after the date of marriage

**Need three court appointed physicians, and there’s no SOL for this
What are three other important things to remember about annulments?
1. All testimony of the annulment grounds must be corroborated

2. All annulments are tried by jury except physical capacity

3. Default SOL – must act within 6 years even if you don’t waive the grounds

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