Domestic Relations

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twiggy924
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27667
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Domestic Relations
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2010-07-22 14:29:53
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Domestic Relations
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  1. *6 Grounds for Divorce
    • 1. Cruel and inhuman treatment
    • a. endangers π's well-being
    • b. proof of physical or mental injury: decisive basis for granting divorce
    • c. continued cohabitation is a factor (not a waiver in itself)
    • d. physical (isolated), mental (ongoing)
    • 2. Abandonment (≥ 1 year)
    • 3. Adultery—note defenses:
    • a. condonation
    • b. recrimination
    • c. connivance
    • d. SOL 5 |
    • 4. Imprisonment (3 consecutive years)
    • 5. Conversion from separation (sep. apart ≥ 1 year
    • 6. Irretrievable break-down of marriage (≥ 6 mo, collaterals)
  2. Proving Adultery
    • 1. Spouses cannot testify against each other
    • a. may testify as to fact of marriage
    • b. cannot testify as to fault or defense
    • 2. May prove through 3P testimony, but must corroborate testimony of:
    • a. prostitutes, and
    • b. private detectives
    • 3. May prove through circumstantial evidence:
    • a. opportunity
    • b. disposition to commit adultery
  3. *Grounds for Legal Separation
    • 1. Cruel and inhuman treatment
    • a. endangers π's physical or mental well-being
    • b. unsafe to cohabit with ∆ spouse
    • c. continued cohabitation is a "favor" (not a waiver in itself)
    • d. physical (isolated), mental (ongoing)
    • 2. Abandonment
    • a. voluntary departure (can be psychic)
    • b. w/o consent or justification
    • c. no intent to return
    • 3. Adultery—note defenses:
    • a. condonation
    • b. recrimination
    • c. connivance
    • d. SOL 5
    • 4. Imprisonment (3 years)
    • 5. Failure to support spouse
  4. *Grounds for Annulment | Voidable Marriages
    • 1. Nonage
    • 2. Mental incapacity
    • 3. Duress
    • 4. Fraud
    • a. misrepresentation or concealment
    • b. re: "essential aspect of marriage"
    • c. SOL: 3 years from discovery
    • d. NB: changed mind/heart ≠ fraud
    • 5. Incurable insanity (5 years)
    • a. 3 court-appointed psychiatrists agree
    • b. condition is incurable
    • c. no prospects of recovery
    • NB: WAIVER can occur if π continues to voluntarily cohabit
  5. Maintenance*** Pending and post-judgment
    • 1. During pending DR proceeding
    • a. Award is automatic
    • b. preserve status quo
    • Presumptive award, but court has equitable discretion to modified
    • 2. Post-judgement (after DR proceeding):
    • a. award based on need, includes:
    • (i) martial fault**
    • (ii) health and age of parties
    • (iii) earning capacity (skills, education)
    • (iv) custody of children
    • (v) duration of marriage
    • (vi) Property division
  6. Maintenance: Termination
    • Court can set termination time;
    • Separation agreement can set termination time; or
    • If recipient remarries or lives with another as if they were spouses.
  7. Maintenance: Enforcement
    • Seize assets;
    • Attach wages by wage reduction order;
    • Take away driver's license, professional license, recreational license
    • ∆ will have to pay counsel's fees if sued for enforcement
  8. Maintenance: When are modifications allowed?
    Modifications require a substantial change in circumstances. Applied prospectively only.
  9. Equitable Distribution***
    • 1. Categorize Assets
    • a. Separate property, note:
    • (i) personal injury awards
    • (ii) appreciation in value (separate, unless active participation)

    • b. Martial assets:
    • (i) Everything else the couple owns
    • (ii) All business income accrued after date of marriage
    • (iii) Professional degree earned during marriage. Calculate augmentation of earnings, discount present value and give augmentation to other party.
    • (ii) everything other than separate property

    • 2. Equitably Divide
    • a. Separate property
    • b. Martial assets: judicial determination
    • (i) health and age of parties
    • (ii) earnings capacity
    • (iii) custody of children
    • (iv) duration of marriage
    • but NOT marital fault
  10. Adoption of Children | Consent Issues
    • 1. Parents lose right to consent if
    • a. child surrendered
    • b. parent is mentally incapacitated—incapable of caring for kid
    • c. parent abandoned kid (≥ 6 mo. w/o any contact)
    • d. neglect (≥ 1 year of insubstantial contact)
  11. Grounds for Termination of Parental Rights
    • 1. Abuse
    • 2. All grounds for dispensing with consent for adoption:
    • a. child surrendered
    • b. parent incapable of caring for kid
    • c. parent abandoned kid (≥ 6 mo. no contact)
    • d. neglect (≥ 1 year "insubstantial" contact)
  12. Child Support: Who must provide?
    • a. Custodial parents
    • b. Non-custodial parents (divorce, filiation proc.)
    • c. Step-parents (if child would otherwise go on public assistance)
    • d. Person's equitably estopped from denying paternity |
  13. Child Support: How long? and When can you modify?
    • a. until child is 21, or
    • b. finished with college subject to parent's economic ability to pay, and child's academic ability |
    • Modification: Substantial change in circumstances
  14. **Custody Determinations
    • 1. Standard: Best interests of Child
    • 2. Factors: Judge has wide discretion, including:
    • a. wishes of parties, child
    • b. physical, mental health of parties
    • c. fitness of custodian (potential for abuse or neglect)
    • d. keeping sibling together
    • e. joint-custody?
    • 3. Non-parent custody
    • a. non-parent must have standing (grandparents, siblings)
    • b. best interest of child standard:
    • (i) strong presumption in favor of parent
    • (ii) non-parent must show extraordinary circumstances or that parent is unfit
    • 4. Visitation Rights
    • a. almost never denied to parents (even bad ones)
    • b. non-parents: must have standing, and show extraordinary circumstances
  15. Support Agreements between unmarried cohabitants
    • Enforceable if:
    • • signed writing
    • • consideration other than sex
  16. Pre- or Anti-Nuptial Agreements
    • 1. writing, signed by both
    • 2. couple got married
    • 3. not product of duress
    • 4. not unconscionable
    • a. spouse can support herself, would not become ward of the state.
  17. Non-marital children
    Conceived by and and born to parents who never marry
  18. Proving Paternity
    • 1. Bring "Filiation Proceeding" prior to child's 21st birthday
    • 2. Father's denial must be corroborated
    • a. but not mother's claim of sex
    • 4. DNA testing is usually conclusive
    • 5. Father can be estopped from denying paternity
    • a. holds himself out as father, and
    • b. child relies
  19. Heart-Balm Actions
    • Abolished in NY (petitioner punishable by felony):
    • 1. breach of promise to marry
    • 2. seduction of an unmarried female
    • 3. alienation of affections
    • 4. criminal conversation (adultery)
    • 5. jactitation of marriage (rep'g yourself as someone's spouse when you are not)
  20. Recognition of Non-Traditional Marriages
    Same sex marriages and common law marriages not allowed in NY. But if a marriage was valid in that state where it was contracted, NY will recognize it if the couple moves to NY. Only exception is if it violates public policy.
  21. Valid Marriage?
    • 1. Capacity needed (age, sanity, etc)
    • 2. License
    • 3. Valid ceremony: officiant, 1 witness (usually 2), exchange of promises agreeing to take on new status as husband and wife)
  22. Termination of Marriage: Declaration of Nullity
    • Grounds to nullify:
    • bigamy
    • incest (none, if related solely by marriage)
    • Can also adjudicate collateral matters (children, economics)

    Declaration is not required. Can just separate.
  23. Annullment: Grounds, SoL
    1. Voidable–Annulment is required. Until you get one, you are still married.

    • 2. Grounds–
    • a. Too young (< 18)
    • b. mental incapacity
    • c. duress
    • d. fraud ("essential aspect of marriage"): lies about
    • i. religion
    • ii. sex or procreation
    • e. 5 years of incurable insanity (can only start litigating after 5 years)
    • i. 3 court-appointed psychiatrists must agree.
    • ii. Must be a disease that is medically testifiable as incurable.
    • f. incurable physical incapacity that prevents sexual intercourse–does not require a jury.

    3. SoL: Absent a special SOL, annulment within 6 years.
  24. Legal Separation
    • Grounds: |
    • 1. cruel or inhuman treatment
    • 2. abandonment (judge has discretion)
    • a. voluntary departure
    • b. w/o consent
    • c. w/o justification
    • d. no intent to return
    • 3. Adultery: but defenses
    • a. recrimination (dirty hands)
    • b. condonation (waiver)
    • c. connivance (entrapment)
    • d. SOL (5 years)
    • 4. 3 years consecutive imprisonment
    • 5. Failure to provide economic support
  25. Divorce
    • Divorce
    • 1. Cruel or inhuman treatment
    • 2. Abandonment (lasting ≥ 1 year)
    • 3. Adultery
    • 4. 3 yeas consecutive imprisonment
    • 5. Conversion divorce
    • a. must separate (notarized agmt, or decree)
    • b. live separately ≥ 1 year
    • c. ask court for divorce
    • 6. *Irretrievable break-down of marriage
    • a. New grounds (w/ no-fault divorce)
    • b. Shown by:
    • i. testimony or affidavit of one party
    • ii. endures for ≥ 6 months |
    • c. Not final until collateral matters resolved:
    • i. child custody
    • ii. money
  26. Dissolution for Unexplained Absence
    • 1. Spouse missing
    • a. without any "tidings"
    • b. at least 5 years |
    • 2. Steps
    • a. diligent search, and
    • b. publish request for return, and
    • c1. π NY resident ≥ 1 year, or
    • c2. NY matrimonial home |
    • 3. Spouse gets it all (no collateral issues)
  27. Out-of-State Divorce
    If divorce in another state and BOTH spouses participate, it will be honored in NY; it cannot be collaterally attacked; and it is res judicata as to all issues that could have been raised.

    If divorce ex parte in another state, it is prima facie valid in NY, but it can be collaterally attacked–must show spouse who got a divorce was not a domiciliary of the other state (just went there for the sake of getting a divorce).

    • A divorce in a foreign country will be honored in NY if BOTH spouses participated under
    • the doctrine of comity. HOWEVER, if only ONE spouse participated, it is INVALID.
  28. Out-of-State Child Support
    So long as the initial order was entered by the home state of the child at the time of the suit, NY will honor it under a uniform statute adopted in all 50 states.

    Home state retains jurisdiction so long as either parent or kid continues to live there.

    Full Faith and Credit for Child Support Orders Act—requires deference to orders in the home state of the child.
  29. Out-of-State Child Custody Orders
    All states defer to the state that entered initial custody order so long as either parent or kid remains in the state.

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