You are on page 1of 10

DOMESTIC RELATIONS A. Roadmap 1.) Matters preceding marriage and the process of getting married. 2.) Termination of Marriage.

3.) Economic Issues Surrounding Marital Termination** (Most heavily tested). 4.) Issues relating to children (Second most-heavily tested). 5.) Conflicts issues related to family law. B. Matters Preceding Marriage 1.) Unmarried Cohabitants: a.) Agreements: An express agreement between unmarried persons who dont plan on marriage pertaining to the relationship is enforceable. i.) But: The agreement is NOT enforceable if any of the consideration is sex. (B/c basically prostitution). ii.) NY will NEVER imply a contract between unmarried cohabitants. 2.) Premarital Agreements: Contract made in contemplation of marriage that is operative upon failure of the marriage. That said, there is no limitation of topical scope. a.) Formalities Required: (For SoF). 1.) In writing and signed by both. 2.) Acknowledged before a notary. 3.) Parties must marry. b.) Challenges to Prenups: 1.) Fraud 2.) Duress 3.) Unconscionability 4.) Factors to Consider: Representation by separate counsel; relative business sophistication; did challenging party know they were waiving judicial determination? c.) Alimony Provisions: Must be1.) Fair and reasonable at the time it was made; 2.) Not unconscionable at the time of divorce.

3.) Nonmarital Children: Have the same rights as marital children in EVERY RESPECT, but there must be proof of paternity for those rights to apply to the father. a.) Legitimation: i.) Acknowledgment of paternity. ii.) Filiation Proceeding (aka Paternity Suit) brought in family court. Can be commenced by the mother, the child through a guardian, the state, or a person who claims to be the father. 1.) Must be filed before childs 23rd birthday.

2.) Generally a DNA blood test. b.) Equitable Paternity: i.) A man who has acted as a father and represented himself as a childs father may be ESTOPPED from denying paternity if the child has justifiably and detrimentally relied on those representations. ii.) The mother can be estopped similarly if she has acquiesced in the development of that relationship between purported father and child. (Relevant if mother tries to bring a filiation proceeding against a DIFFERENT person). C. Getting Married 1.) Only One Way to Get Married in NY: A ceremonial marriage. Two requirements: a.) Marriage License b.) Ceremony 2.) License: a.) Sole purpose is to determine whether you have the capacity to marry. (E.g., capacity to enter into ANY contract). b.) In NY you have capacity to marry if you are both of the same sex. 3.) Ceremony: a.) Must be a solemn declaration before an officiant and a witness. b.) Officiant: Either a member of the clergy or a civil officer empowered to administer oaths. c.) Witness: Officiant is a participant; thus cant witness own act. The witnesses are commonly the best man and the maid of honor. d.) Solemn Declaration: The wedding vows. There are no magic words. Must evince you are seriously undertaking the position of spouse. 4.) Common law marriage is NOT AVAILABLE in New York! However: Common law marriage is portable. a.) If a common-law married couple moves to New York, New York regards them as marriage.

D. Termination of Marriage (Brought in Supreme Court, not Family Court) 1.) Declaration of Nullity: Individuals lacked capacity to enter marriage, thus rendering the marriage void. So, parties were never really married, but the declaration is typically obtained for clarity of the record. (NULLITY CANNOT BE WAIVED). a.) Two Grounds:

i.) Bigamy; ii.) Incest (Cannot marry ancestors, descendants, full or half-blood siblings, or lineal relatives up or down by ONE generation; it is legal to marry cousins). 2.) Annulment: There is a lack of capacity that makes the marriage voidable, but not totally void. (Unlike nullity, if you dont seek an annulment, you remain married). Annulment can be waived if the spouses continue to cohabit (live together; sexual relationship) after removal of the ground for annulment. a.) Six Grounds: i.) Nonage (must be 18 to marry); 1.) If you continue to cohabit after you turn 18, you waive this ground. 2.) An infant aged 16 or 17 can marry with parents permission. 3.) An infant aged 14 or 15 can marry with parents AND a judges permission. ii.) Mental incapacity at time of marriage. 1.) Waived if spouse continues to cohabit after incapacity ends. 2.) Action brought by guardian/committee iii.) Duress (Shotgun wedding) iv.) Fraud (Testable!) 1.) Misrepresentation or concealment of information that goes to an essential aspect of the marriage by one party prior to marriage. (One fianc keeps a big secret or tells a big lie to the other). 2.) Essential Aspects (Case law): Religion or religiosity; Procreation and sex; Misrepresenting paternity; Not revealing past employment as a prostitute. 3.) Fraud can be waived if the marriage continues AFTER the fraud is revealed. 4.) Not Essential: Lying about money, property, or social status. 5.) Annulment must be brought in three years. v.) Physical Incapacity: INCURABLE physical inability to engage in safe and normal intercourse. If transitory or temporary, that is NOT grounds for annulment. NOT about procreation- sterility is no basis for annulment. 1.) Does NOT apply to a PSYCHOLOGICAL hindrance. 2.) 5-year S/L from date of marriage. vi.) Five years of incurable insanity arising AFTER marriage: THREE courtappointed physicians must agree on the diagnosis. 3.) Action for Legal Separation: Does NOT terminate the marriage! It is court permission to live apart, and will determine property and monetary support rights and custody. a.) Why Go Only Half-Way: i.) So you dont lose the benefits of being married (joint insurance, tax status, etc.). ii.) Moral or religious scruples against divorce. b.) Five Grounds: i.) Cruel and inhuman treatment. (Both physical and mental abuse).

1.) Mental Abuse: A continuing course of conduct that endangers the well-being of the injured spouse, and makes it unsafe or improper for the parties to continue to cohabit. ii.) Abandonment. 1.) Voluntary departure. 2.) Departure was without consent of spouse. 3.) No justification for abandonment. (Unlike, say, leaving because you are a victim of domestic violence). 4.) No intent to return. 5.) Note: Constructive Abandonment. An effective abandonment of the marriage without leaving the domicile. E.g., permanent refusal to have sex, permanent refusal to talk to spouse, etc. iii.) Adultery 1.) Affirmative Defenses: a.) Condonation (resuming cohabit after learning about adultery) b.) Connivance (P procured the adultery to escape marriage) c.) Recrimination (Dirty hands; P him/herself also committed adultery). d.) Statute of Limitations: 5 years after discovering adultery. iv.) Three Consecutive Years Imprisonment v.) Failure to Support

4.) Divorce: In 2010, New York adopted no-fault divorce, but it RETAINED the fault grounds. a.) Fault Grounds (4): i.) Identical to the first four grounds for separation. Cruel/Inhuman treatment; Abandonment (for 1 continuous year); Adultery; 3 yrs imprisonment. ii.) Failure to support is NOT grounds for divorce. b.) Conversion Divorce: The couple must FIRST separate, either pursuant to court order OR by separation agreement, and must then live separate and apart for ONE YEAR. i.) When the one year has elapsed, the separation will can be converted into a divorce.

ii.) Separation Agreements: 1.) In writing and acknowledged; 2.) No duress or undue influence; 3.) Must file with the court. 4.) Is considered rescinded if you have sex with your spouse with intent to reconcile at some point during the one year period. (But sex does not affect a separation by court order). iii.) The material breach of a separation agreement precludes a conversion divorce. c.) No-Fault Divorce: If there is an irretrievable breakdown of the marriage for a period of at least six months. i.) One spouses testimony is essential. ii.) The divorce will NOT be entered until an agreement as to distribution of property is settled. 5.) Dissolution: Used when the spouse has disappeared without any tidings for a period of at least five years. Effectively a determination that the spouse has died. a.) Requirements: 1.) Must make a diligent search. 2.) Must publish a request that the spouse return for three weeks in an Englishlanguage newspaper. 3.) Party seeking dissolution must have lived in NY for at least one year, or NY must have been the matrimonial domicile at the time of the disappearance. b.) No collateral remedies for property. Spouse is presumed dead, so spouse gets his property. 6.) Procedural Notes: Automatic orders when divorce action beginsa.) Forbidding transfer and concealment of assets or taking on unnecessary debts. b.) The parties are obligated to make FULL financial disclosures and file their tax returns.

E. Economic Consequences of Divorce 1.) Maintenance: NYs word for alimony. a.) While a case is pending, any party may ask for temporary maintenance sufficient to preserve the status quo. i.) Apply it when question says a party is concerned about supporting themselves during divorce proceedings. b.) Factors Considered When Determining Maintenance Eligibility: Generally, use the facts of the problem, because the court may ultimately consider ANY facts that are relevant. But here are some to guide you

i.) Health and age of spouses; ii.) Education, training, and time needed to acquire marketable skills (if one spouse has been out of the job market for a while); iii.) Who will be the custodian of minor children; iv.) Comparative property ownership; v.) Comparative marital fault. c.) There is a rebuttable presumption that the economically poorer spouse will get attorneys fees. d.) Maintenance as a Continuing Obligation: Must consideri.) Modification; 1.) Award can be changed upon a substantial change in circumstances (on petition from either party). (E.g. Payor got laid off). 2.) Arrears are NOT MODIFIED by subsequent modification. 3.) Maintenance under a separation agreement can ONLY be modified after a showing of extreme hardship (higher standard). ii.) Termination; 1.) If there is an express end-point, thats when it ends. 2.) Automatic Termination: a.) Death of either party; b.) Remarriage of recipient or recipient living with another as if married. iii.) Enforcement; 1.) Attachment, garnishment, foreclosure, replevin; 2.) Revoking or denying licenses (drivers license, professional licenses) 3.) Revoking or denying recreational licenses 4.) Contempt (jail).

2.) Property Division: New York is an equitable distribution state. It is a two-step process: a.) Categorize the assets. i.) EVERYTHING owed by the married couple goes into one of three categories: 1.) Husbands separate property; 2.) Wifes separate property; 3.) Marital property. ii.) Separate Property: 1.) Any asset owned a spouse PRIOR TO MARRIAGE. 2.) Any gift or inheritance received by a spouse in SOLE name AFTER the date of marriage. 3.) Property agreed to be separate.

4.) Personal injury compensation that is designed to compensate for PAIN AND SUFFERING. 5.) Any appreciation in the value of items 1-4 UNLESS due to other spouses participation or effort. a.) Added value goes into marital property. b.) Homemaking and childcare-giving can count as participation/effort in developing value if it frees up the other spouse to engage in efforts that increase asset value. iii.) Marital Assets: i.) Anything that is not separate property that is acquired during the marriage. ii.) Includes professional degrees and licenses acquired during marriage. (Assigned a value by court). iv.) Note: Separate property is an EXCEPTION to distribution. Assets are presumptively marital if acquired during the marriage. b.) Distribute the Marital Assets. i.) Each spouse gets their respective SEPARATE property. ii.) Marital Assets: Divided by equitable distribution. 1.) Court can consider ANY factor in making a property division award EXCEPT non-egregious marital fault. 2.) Otherwise, the factors considered are the same used to determine maintenance. i.) Note: Statute expressly mentions loss of health insurance and inheritance rights as factors, and that the custodial parent should generally live in the marital home. iii.) Implementation: 1.) Court can distribute assets through specific distribution, OR just make a cash award and let the parties settle the amount through property transfer or cash grant.

F. Issues Pertaining to Children 1.) Termination of Parental Rights: Located in Social Services Law. Litigated in Family Court. Case must be proved by CCE. Parent has a right to counsel! a.) Grounds (5): i.) Abandonment (fail to visit or communicate with child for at least 6 mos with intent to forego parental rights) ii.) Permanent Neglect (Parent has failed for a period of one year to plan for the future of the child and maintain any contact with that child, even though he or she is financially capable of doing so). 1.) Note: Extended imprisonment is probative of neglect. iii.) Abuse

iv.) Parents mental illness or developmental disability such that parental care is impossible. v.) Murder of a childs sibling. b.) There CANNOT be a provision for visitation in an order terminating parental rights.

2.) Adoption a.) Who May Adopt: Adult married couple; two unmarried parties in an intimate relationship to jointly adopt; single adults; step-parents; separated person adopting singly. b.) Who May Be Adopted: Anyone, child or adult. But you must get the necessary consents: i.) If adoptee is a minor, both biological parents or any legal custodian of the child. ii.) If child has been voluntarily surrendered to state custody, NO consent from biological parents needed. (Putting child up for adoption). iii.) If biological parents rights have been terminated, their consent is not required. iv.) If adoptee is over 14, must have consent of adoptee. c.) Investigation of Adoptive Parents: Interviews, home study visits, etc. There is a policy of religious matching, if possible. i.) If child is a minor, there is a three-month trial period, after which there is a hearing for a decree of adoption.

3.) Child Support: Both biological parents are obligated to support their children through age 21. Support may continue through college if the parents can afford college and the child shows academic merit. a.) For the most part, a support order is only addressed to a non-custodial parent. (After marital termination, or a non-marital child after a filiation proceeding). b.) Child Support Guidelines: Default rules in absence of agreement between parents. Must at LEAST meet the support level in the guidelines, though. i.) Continuing Obligation: 1.) Modification: Can be modified on showing a substantial change in circumstances. Can always petition for modification after three years since last modification occurred. a.) If there has been a 15%+ change in either parents income, that is basis for a modification. 2.) Termination: Death of parent; death of child; child reaches 21. 3.) Enforcement: Same techniques as maintenance.

4.) Child Custody: a.) Jurisdiction: A state may enter an initial custody order if it is currently the home state of the child OR was the home state within the last six months. (Home state = state where the child has lived with a parent for six consecutive months prior to the custody proceeding). i.) Once the custody order has been entered no other state can enter orders conflicting with it. b.) Substantive: The best interests of the child are the basis for determining custody. i.) Factors: (List not exclusive) 1.) Mental and physical health of the parents. (Including addiction). 2.) History of domestic violence. 3.) Any other criminality. 4.) Whether either parent has a new companion, and what kind of person they are. 5.) If child is over 12, whether child has expressed a preference. 6.) Look to see which placement would preserve important familial relationships (a favorite cousin, e.g.). 7.) Parent relations and proximity (for determining joint custody). ii.) Generally: To the extent you can, follow your best judgment. c.) Parent vs. Nonparent: In cases where the only available parent is not the best placement. (Like, daughter-parent v. grandmother). i.) Standard is STILL best interest of child. ii.) BUT there is a presumption in favor of the parent. iii.) Nonparent must show either: 1.) Parent is unfit; or 2.) There are extraordinary circumstances.

d.) Relocation of Custodial Parent: i.) Parent must show the relocation is in the best interest of the child. e.) Visitation: i.) Visitation is almost never denied, and is never conditioned on child support, and is not rescinded because of incarceration. ii.) In-Law Visitation (Including grandparents): Parents have a due process right to raise their kids as they see fit. In-Laws, then, must make a showing of special circumstances sufficient to show a substantial state interest in grandparental visitation. a.) You will find the special circumstances in the facts of the problem. 5.) Best Interest of the Child a.) The get out of jail free card: Use it in ANY QUESTION where theres a kid in issue, and you are asked to resolve the childs rights.

G. Conflict of Laws Issues 1.) Out of State Marriages: If valid where contracted, valid here UNLESS it violates a strong NY public policy. 2.) Out of State Divorce: Divorces in other jurisdictions are given full faith and credit in NY; no collateral attack allowed. (Case is res judicata on all issues that were and couldve been litigated). (E.g. Montana court issues divorce, doesnt award maintenance; NY cannot award maintenance). 3.) Other State Ex Parte Divorces: Prima facie valid if D received notice, but CAN be collaterally attacked. (Attack: Party that obtained the divorce wasnt truly domiciled in the forum state). 4.) Non-US Divorces: If BOTH spouses participate, NY will generally honor it under comity. BUT ex parte non-US divorces are INVALID. 5.) Child Support Orders: Any state that has entered a child support order has continuing and exclusive jurisdiction over the order, provided a parent or the child continues to live in that state. a.) Child support orders are ALSO enforceable across state lines (treated as a final judgment even though it is not because it is modifiable).