Family Rules 2

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Family Rules 2
2010-07-15 11:26:33
Ending Marriage

Ending Marriage
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  1. Annulment
    Terminates marrage as of date of decree; marriage treated as having existed to that date. Equitable distribution still available. Can be done for void and voidable marriages.

    Void marriages:

    • Bigamy
    • Enoch arden (good faith belief spouse is dead, partner absent for 5 consecutive years, diligent search made including publishing in newspaper)
    • Incest
    • Incarceration (life sentence)

    Voidable marriages:

    • Age (available until underage partner reaches majority)
    • Mental incapacity (at the time marriage was entered into)
    • Physical incapacity (party was naturally and incurably impotent at time of marriage)
    • Fraud, misrepresentation, duress, coercion, or force
    • Incurable mental illness
  2. Separation
    Separation agreements mustbe: in writing, executed by the parties, notarized, and not expressly require divorce.

    Grounds for separation: adultery, abandonment, cruel and inhumane treatment, and any other ground for divorce PLUS failure to support.

    Requirements for separation agreement: freely and voluntarily made,* separation occurs prior to or imnmediately after execution of the agreement, and does not call for divorce or alter support obligations of spouses.

    *representation by same attorney will be a significant factor in evaluating whether agreement was freely made.

    Upon divorce: agreement will either be terminated or merged with divorce decree.

    • If merged: agreement terminates and divorce decree governs. To modify, must show substantial change in circumstances.
    • If not mergerd: to modify, must show extreme hardship.

    Minor failures to meet terms of agreement do not nullify the agreement.
  3. Divorce

    • Adultery: proven by circumstantial evidence - party had opportunity and inclination to commit adultery with enough evidence to conclude guilt. Info from prostitute or private detective not enough. SoL is FIVE years from date of discovery.
    • Cruel and inhumane treatment: must prove course of conduct that is harmful to physical or mental health and makes continued cohabitation unsafe or improper. Conduct must be serious - not mere words, unless they are threats of physical violence.
    • Abandonment: voluntary leaving of marital home without cause or consent and with intent to remain apart on permanent basis, with at least one hear intervening since leaving. CONSTRUCTIVE ABANDONMENT: spouse unjustifiably forces other to leave home.
    • Imprisonment: of three or more consecutive years.
    • Separation (conversion): separation decree + one year apart + substantially performed all of the conditions under the decree.


    • Recrimination: accusing spouse is also guilty of the grounds. Only available for adultery.
    • Connivance: consent to wrongdoing
    • Condonation: forgiveness
    • Collusion: both spouses cosnpired to fabricate grounds for divorce
    • Provocation: misconduct provoked by moving party
    • Consent
    • Justification:
    • Religion: NOT allowed. Religion is not a defense to divorce.
  4. Division of property
    Equitable distribution - what is fair, considering the circumstances.

    Each party files sworn statement of net worth, including a paycheck stub.

    Factors considered in equitable distribution:

    • income of each party
    • age and health
    • duration of marriage
    • need of custodial parent to occupy marital residence
    • maintenance awards
    • likely future financial circumstances

    • Professional licenses or degrees: marital property, subject to equitable distribution and valuded based on increase in earnings over time.
    • Retirement and pension benefits: marital property, subject to equitable disstribution. Early retirement incentives are NOT marital property. Disability retirement benefits are split: amount attributable to the injury or disability is NOT marital property, but regular retirement portion IS.
    • Comingling of assets: separate property that is comingled with marital property becomes marital property.
    • Appreciation on separate property: active appreciation is marital property; passive appreciation is not.
    • Future interests: not marital property
    • Social security: NOT marital property
  5. Spousal maintenance
    Preference for short-term obligations

    Award is based on the couple's actual standard of living

    Some factors in determining mairntenance amount:

    • income and property of each spouse
    • age, mental, and physical health
    • duration of marriage
    • earning capacity
    • ability to become self-supportive
    • custody of children
    • contribution of earning capacity to other spouse

    Marital fault is only a bar to maintenance if the conduct was egregious.

    • Modification: Must be a significant change in circumstances in needs of dependent spouse if support was awarded judicially. If part of unincorporated separation agreement, must show extreme hardship.
    • Death: continues until death of spouse
    • Remarriage: continues until receiving spouse remarries
    • Cohabitation: continues even after receiving spouse cohabitates
    • Arrears: not discharged by death, cohabitation, or remarriage, but may be reduced on showing of good cause.
    • Interference with parenting time: may be suspended when custodial parent willfully interferes with the other parent's lawful visitation rights.
  6. Jurisdiction
    Supreme Court has exclusive right to grant judgements in matrimonial actions. Incidental matters may be determined by family court.

    Residency requirement:

    • No residency requirement: both parties are NY residents and cause of action arose in NY
    • One year: one year residency + married in NY, resided in NY as marital couple, or cause of action arose in NY
    • Two years: if none of the one-year requirements are met.

    Long arm jurisdiciton over nonresident spouse

    • NY was matrimonial domicile before separations
    • defendant abandoned plaintiff in NY
    • claim for relief accrued under NY law
    • claim for relief is pursuant to agreement executed in NY.
  7. Child support
    Obligation until child reaches 21 or is emancipated. Indefinitely for children incapable of supporting themselves.

    Parents may enter into private agreement regarding child support, but such agreements cannot negatively affect child's welfare or inadequately support child.

    In addition to child support, parents jointly responsible for: uninsured medical expenses, child care costs, and educational expenses.

    Amount: Add parents' incomes, multiply by percentage based on # of children (1 = 17%, 2 = 25%, 3 = 29%, 4 = 31%, 5+ = 35%), divide by each parent's share of the combined income, up to $80,000. May deviate by showing specific findings, such as underemployment of parent, standard of living child had during marriage, visitation expenses, disparity in income, etc.

    Modification: must be a substantial change in circumstances and that modification is in the best interests of the child. Court considers increases in cost of living, changes in financial conditions of parents, special circumstances, lifestyle of child. If for reasons other than inadequate support, must show that change in circumstances is unforeseen and unreasonable.
  8. Uniform interstate family support act (UIFSA)
    Jurisdiction proper where first action for support under UIFSA was filed. If two or more tribunals have adjudicate child support matter, home state test applies.

    Jurisdiction under long arm:

    • Respondent lived with child in NY
    • Child lives in the state as a result of acts or directives of the respondent parent
    • Respondent had sexual intercourse in the state, which may have result in the conception of the child
    • Respondent asserted parental rights in putative father's registry maintained in the state

    Exclusive continuing jurisdiction: continues until parties no longer reside in the state or the parties consent in writing to jurisdiction of another state.