Family

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Author:
mjabali
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292280
Filename:
Family
Updated:
2015-01-04 19:52:42
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feb
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bar exam
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  1. marriage=
    a civil contract that requires consent, consideration, and rights and obligations that flow from contract
  2. Unlike other Ks, state must intervene to terminate the contract( i.e. divorce)
  3. NY only grants a ceremonial marriage; no common law marriage
  4. NY Will recognize a common-law marriage valid in another state under Full Faith and Credit Clause
  5. ceremonial marriage requirements:
    • license
    • solemnization
  6. license requirements
    • age:
    • -if over 18: no other consent necessary
    • -16-18: parental consent
    • -14-16- parental AND judicial consent
    • -if below 14, marriage forbidden

    waiting period of at least 24 hours once license obtained. Good for 60 days after issue

    testing for sickle cell anemia if black, unless test prohibited by religion
  7. clerk will deny a marriage license when:
    • either party is already married to someone else
    • parties too closely related as per statute (but 1st cousins and related by adoption ok)
    • sham
    • parties incapable of understanding (e.g. developmental disability, inebriation, etc)
  8. same-sex marriage allowed in NYS via Marriage Equality Act
  9. NYS recognizes a civil union and will give full faith and credit t a civil union from another state
  10. civil union=
    a contracted relationship that gives many of the rights of a marriage, but cannot obtain a divorce from a civil (b/c not a marriage)
  11. solemnization/ceremony requires:
    • one witness AND
    • someone to perform the marriage (e.g. judge, political official, member of the clergy)
  12. "marvin" relationship=
    consensual K between two unmarried people
  13. Marvin relationship not allowed in NY
  14. domestic partnership is a civil union specifically in NYC and for NYC employees.
  15. anything given in contemplation of marriage when the consideration was the marriage itself is retrievable if the marriage does not occur (e.g. engagement ring)
  16. a marriage can be ended by divorce, annulment, or death
  17. annulment in NY is valid as of the date of the annulment decree. A marriage is considered valid until the date that the annulment decrees is issued
  18. annulment can be based on either a void marriage or a voidable marriage
  19. void marriage=
    marriage that never should have taken place
  20. voidable marriage=
    marriage still can be valid (e.g. age, mental incapacity, physical incapacity, fraud/misrepresentation/durress, etc., persistent mental illness)
  21. separation can become the basis for a divorce via conversion divorce
  22. to be valid, a separation agreement must be in writing, singed by the parties, and notarized
  23. grounds for separation are the same as fault grounds for divorce plus the failure to support
  24. for separation agreement to be valid, must be voluntarily entered into by both parties and the separation must occur immediately after the separation agreement
  25. the K cannot obligate the parties to give up support that they would otherwise be eligible for
  26. if the same atty represents both parties in the separation arrangement, then the court is going to look closely at the agreement
  27. separation agreement: issues regarding the child are always subject to he court's review of the "best interests of the child." (e.e.g child support and custody)
  28. if the parties remain separated for a full year, parties can use the separation as the basis of divorce (conversion divorce)
  29. In conversion divorce, two things can happen with separation agreement:
    merge or incorporation
  30. Merge (melt away) the separation agreement merges with the divorce agreement and court's judgment --> only the judgement persists
  31. The standard to modify the court's judgement is:
    a substantial change in circumstances
  32. civil and criminal contempt actions can be brought for failing to comply with judge divorce order.
  33. incorporation=
    separation agreement remains separate and is not enforced like a court order; enforce like a contract
  34. In incorporation of separation of agreeemnt, indepenedent contract is incorporated into the divorce decree; items cannot be enforced through court proceedings.
  35. Standard for modifying divorce via incorporation is:
    extreme circumstances
  36. no fault divorce=
    parties allege that the marriage is irretrievably broken
  37. all the issues attendant to a divorce (e.g. spousal maintenance, child support, etc) must be resolved BEFORE a no-default divorce can be granted
  38. at least one spouse must affirm under oath that the marriage was irretrievably broken and has been for at least 6 months
  39. bases for fault divorce (just the list)
    • adultery
    • cruel and inhuman treatment
    • abandonment
    • imprisonment for 3 or more years
  40. fault divorce: adultery occurs when one of the parties has engaged in a relationship with a third party
  41. recrimination is a defense to a divorce action based on adultery; an allegation that the spouse seeking the divorce has also engaged in adultery
  42. recrimination: one spouse can't testify against the other spouse exept to prove the marriage took place, to disprove the adultery, or disprove a defense
  43. recrimination: circumstantial evidence: must show inclination and opportunity to commit adultery
  44. recrimination: if using testimony of a private investigator or prostitute, must have corroboration of testimony.
  45. recrimination has a 5 year SOL from the date of discovery
  46. fault divorce: cruel and inhuman treatment: course of conduct (not just a single act), harmful to P's physical or mental health that makes continued habitation unsafe 
  47. cruel and inhuman treatment: grounds alleged and proven may be relevant to a child custody determination
  48. cruel and inhuman treatment: court will consider these factors:
    • age of the parties
    • duration of the marriage (may be higher proof if longer marriage)
    • objective evidence of harm
    • impact on spousal maintenance award
  49. cruel and inhuman treatment has 5 year SOL which starts to run upon the last occurrence of cruel and inhuman treatment
  50. fault divorce: abandonment: one party leaves marriage for at least one year with the intent not to resume cohabitation and did so without justification
  51. constructive abandoment= one spouse forces the other spouse out of the house
  52. constructive abandoment requirements:
    • must be willful, continued, and unjustified
    • must include refusal to engage in sexual relations
    • must be at least one year
  53. not abandonment if it's justified!
  54. No divorce if D has proves:
    • recrimination
    • connivance: party alleging the adultery set it up
    • condonation: forgivenes and resumption of marital relations
    • collusion: spouses conspired
    • provocation: provoked by the moving party
    • consent: a defense to abandonment or adultery
    • justification: a defense to abandonment
  55. religion is not a defense to a fault-based divorce in NY
  56. NY is an equitable distribution state: upon dissolution of marriage, marital property is dealt with fairly. Fairly does not mean equally
  57. equitable distribution: property distribution deal with in the supreme court
  58. marital property=
    generally, everything acquired during a marriage, with some exceptions. Title to the property doesn't matter
  59. things that are not marital property:
    • - property acquired before the marriage
    • - pre-nup- agreement either before or after getting married that certain property will not be part of equitable distribution
    • - gift or inheritance
    • - investment income or other property by an exchange for separate property, even if acquired during the marriage
    • -appreciation if due simply to market. But if appreciation from active participation of the spouse, or the result of renovation or improvements paid for with marital property, then marital property
    • - injury compensation
    • - retirement of pension benefits that haven't vested
    • - social security
  60. distributing marital property: court uses fact-specific totality of the circumstances. Factors considered:
    • income of property of each party at the time of the marriage and divorce
    • loss of inheritance and pension rights once the marriage is dissolved
    • age and health of the parties
    • duration of the marriage
    • need for a custodial parent to occupy a marital residence
    • spousal support
    • tax consequences to each party
    • whether either spouse has been irresponsible in reducing value of marital property
    • loss in health insureance benefits due to divorce
    • likely future circumstances of the property
    • and any other factor that the court deems just and proper
  61. marital property: professional license: the court looks at both the present value of the license AND the career potential enhancement of that professional license
  62. spousal maintenance (i.e. alimony/palimony)=
    the obligation of one party to provide the other with support in the form of income. It is awarded in a divorce if one spouse cannot provide for his own needs with employment
  63. short term spousal maintenance is preferred in New York
  64. the test for spousal support is the___
    actual living standard the parties enjoyed during the life of the marriage; it is not about keeping someone above the level of indigence.
  65. courts will consider a variety of factors to determine amount of spousal maintenance, including:
    • the income and property of each spouse
    • spouses respective ages
    • mental and physical health of the parties
    • the duration of the marriage
    • the income capacity of each spouse
    • which party has custody
    • tax consequences
    • any other factor the court finds just and proper
  66. spousal maintenance: marital fault has to be egregious e.g. cruel and inhuman treatment
  67. modification of spousal support depends on the manner in which the court makes the decision and on the existence of a separation agreement
  68. if no separation agreement (b/c it merged with the court order) the court will look for a significant change in circumstances to modify an award of spousal maintenance
  69. if a separation agreement exists that remains independent and is incorporated in the judgment as a separate agreement, then there must be extreme hardship to modify the spousal maintenance
  70. spousal maintenance ends with:
    - death of the receiving spouse
    - remarriage of the receiving spouse
  71. co-habitation does not end the obligation or receipt of spousal maintenance
  72. Arrears (back payments) for spousal support are not discharged by death, remarriage, or co-habitation.
  73. For a showing of good cause, arrears for spousal support can be modified.
  74. If the party receiving spousal maintenance prevents the party paying spousal maintenance from exercising his visitation rights, the party paying spousal maintenance can suspend spousal maintenance.
  75. Under New York law, Supreme Court has exclusive jurisdiction over divorces and property distribution
  76. family court has concurrent jurisdiction with the Supreme Court over child support, maintenance, and child custody matter
  77. if parties have never been married, they can only go to family court
  78. child protection, juvenile delinquency, adoptions and PINS cases are exclusively in family court
  79. jurisdiction is the authority of a court to decide a case or issue a decree- there must be authority over both the persons and the subject matter of the action
  80. In New York, the Supreme Court has exclusive jurisdiction over actions for divorce and separation. In matrimonial actions, the New York
    Supreme Court has the power to adjudicate the marital status of the parties
    based upon the theory that marital status is a res which is found whenever at
    least one of the spouses, usually the plaintiff, is domiciled in New York
    State. Therefore:____
    • matrimonial actions are in rem
    • actions, and the presence of the defendant within the state is not required to
    • confer jurisdiction on a New York court to annul a marriage, declare a void
    • marriage, or for divorce or separation. 
  81. subject matter jurisdiction: filing a matrimonial action (e.g. marriage, divorce): If both parties are New York residents, then it doesn't matter how long the parties have lived in New York
  82. To file for a divorce in New York, the plaintiff
    must satisfy one of the following residency requirements: (1) one party has
    been a New York resident for a continuous period of two years prior to the
    action; OR (2) both parties are residents of New York (no matter how long) at
    the time the cause of action arose in New York; OR (3) one party has been a New
    York resident for a continuous period of at least one year immediately
    preceding the divorce action, and at least one of the following must also be
    true:
    • (a) the marriage ceremony was performed in New York;
    • (b) New York was the matrimonial domicile; or
    • (c) the cause of action arose in New York. 
  83. Ex parte divorces allowed: court does not have to have personal jurisdiction over both parties, as long as the court has subject matter jurisdiction over the divorce.
  84. Where a defendant spouse is a non-domiciliary and out of
    state, the service provisions of the NY CPLR pertaining to ''matrimonial
    actions'' may be utilized to obtain in rem jurisdiction over the marital status
    of that spouse. On a non-resident defendant spouse, jurisdiction is obtained
    through personal service of process on the defendant outside the state. However,
    a party to a matrimonial action may receive an order authorizing substituted
    service on motion to the court. 
  85. personal jurisdiction: if it's a non-resident defendant, New York will have subject matter jurisdiction over the divorce, but the court must get personal jurisdiction over a non-resident defendant to deal with related matters, such as property distribution, child support, spousal maintenance and child cusotdy
  86. divisible divorce: can deal with divorce itself in New York and the related matters somewhere where personal jurisdiction over defendant can be obtained
  87. long-arm statute: New York law provides for extension of jurisdiction when matrimonial and child support issues are combined if you have support and maintenance issues combined e.g
    • When New York was the matrimonial domicile of the parties before the separation;
    • the D abandoned the P in New York
    • the claim for relief accrued under New York or the 
    • claim for relief is pursuant to an agreement that was agreed to in New York
  88. if an ex parte divorce takes place, the party that did not appear cannot collaterally attack the action unless they can show that the resident plaintiff was not actually a resident in New York
  89. If either party relies on the divorce, it cannot be collaterally attacked
  90. NY recognizes divorces finalized in foreign countries if:
    parties properly appeared AND
    petitioning spouse was a resident of that country
  91. ex parte foreign divorces or mail order foreign divorces are not recognized in NY
  92. it is unconstitutional to require fees that would preclude an indigent person from being able to divorce- there must be a mechanism for fee to be waived
  93. there is no legal right to counsel in a New York divorce action but the court has the discretion to award fees and costs as part of the divorce decree if it finds that one party is unable to pay those fees and costs
  94. child support til 21
  95. child support: obligation of both parents
  96. if the child is incapable due to mental or physical challenges, then the parties may be required to provide support on an ongoing basis for the rest of the child's life
  97. the right to child support is the child's right. The parents cannot bargain it away.
  98. paternity: the court can order a blood test
  99. paternity has to be proven by clear and convincing evidence
  100. if the blood test comes back negative, then that is sufficient to dismiss the paternity action
  101. if the blood test comes back positive, there needs to be further evidence to show that he in fact is the father
  102. paternity proceeds can begin as early as during pregnancy, but must be brought prior to the child reaching the age of 21
  103. presumption that if a woman is married, her husband at the time of the child's birth is the child's father, even when there are facts raised to the contrary.
  104. ex parte proceedings: when the male does not appear, temporary support can be awarded
  105. paternity by estoppel: when a man holds himself out to be the father of a child, and later learns that he is not the father and wants to defeat an award of child support, he may be estopped from denying paternity if he held himself out as the father of the child and the child grew up understanding he was the father of the child even if facts proving he is not the biological father
  106. may be a post-secondary obligation depending on:
    the financial means of both parties
    educational level of the parents
    the environment in which the child grew up and 
    the academic ability of the child
  107. temporary support can be granted even without an emergency or immediate need
  108. to calculate child support:
    - combine the income, from all sources, of the mother and father
    - apply the percentage based on the number of children of the union
    --1 child, court multiplies pool of money by 17%
    --2 25%
    --3 29%
    --4  31%
    --5 no less than 35%
    3. calculate percentage of the pot of money came from the mother and what percentage came from the father. This is the amount that each owes.
  109. the court can deviate from the child support guidelines when income exceeds $136,000 or if there is a specific finding that explains the deviation from the guidelines. In calculating any deviation, the court can consider a host of factors.
    • physical and emotional health of the child, including special needs
    • the standard of living enjoyed by the child had the marriage not dissolved
    • the financial resources of all the parties, including the minor child
    • and any other relevant factor
  110. to modify support, courts require a substantial change in circumstances
  111. child support arrears cannot be modified or forgiven
  112. upward modification: parent must show a substantial change in circumstances warranting an increase, and that the increase is necessary and in the best interest of the child
  113. upward modification: court will consider the cost of living increase, substantial improvement of either parent, an increase in need due to the child's activities or some special circumstances, and lifestyle of the child.
  114. a court can also modify support upwardly after 3 years or after a party's gross income has increased by 15% or more since the previous order of support
  115. downward modification: the change in the parent's financial circumstances must be unforeseen and involuntary. No set of factors to consider, just look at the facts of the case
  116. if the parties agree to a child support award in a separation agreement, then those amounts are fully enforecable by the court
  117. support terminates usually when the child reaches age 21 (unless incapable of self support or college costs have been awarded) if the obligated parent's rights are terminated, if the obligated parent or the child dies, or when the child becomes emancipated.
  118. emancipation=
    child is no longer the supervision of the parents and has an independent means of support
  119. a child getting child support may not be emancipated simply because he/she has a child
  120. Jurisdiction for child support matters is based on the basic notion of consistency and reliability
  121. the home state will have continuing, exclusive jurisdiction over child support matters
  122. only when the parties and child no longer resides in the home state may another state modify the child support award
  123. only one state's court has jurisdiction at a time
  124. cancellation of accumulated child support is prohibited, so a party cannot go to another court to forgive arrears accrued based on the original order of child support
  125. enforcement of child support: civil contempt is ruled when a valid court order to pay child support is not followed
  126. civil contempt: obligation to pay support is suspended while parent is incarcerated for contempt for spousal support, but not the obligation to pay child support. Arrears accumulate while parent is in prison and cannot be forgiven
  127. enforcement of child support: criminal contempt occurs when a a specific jail term is imposed when person obligated to pay support willingly does not pay.
  128. enforcement of child support: criminal contempt: must serve the sentence even after payment is made
  129. constitutional protections for criminal defendants attach to parent
  130. other enforcement mechanisms include wage garnishment, lien on property, interception of tax refunds, etc.
  131. the court must have jurisdiction over the non-paying parent to hear an enforcement action
  132. no tax deduction for child support, unlike spousal maintenance
  133. Under UIFSA, the court that has original jurisdiction and issues the child support award has continuing exclusive jurisdiction over the award unless the parties, including the child, no longer reside in New York or the parties consent in writing to the jurisdiction of another state
  134. child custody: so long as there is not extreme acrimony between the parties, there is joint legal custody and there may be joint physical custody
  135. physical custody, even if it is joint, does not require an even split between the parents (i.e. 50/50 custody)
  136. if the parties decide the custody in a separation agreement, the court will review that agreement for the best interests of the child
  137. custody factors: any factor that it deems relevant, fair and just, e.g:
    • whether both parents have parenting skills
    • physical and mental health of each of the parents
    • the willingness to foster a relationship with the non-custodial parent
    • the lifestyle of the child before the parents separated or divorced
    • the child's wishes, if the child is mature enough
  138. parenting time is presumed to be in the best interest of a child, but that only goes to an actual parent, not someone who has merely held himself out as a parent
  139. grandparents may seek visitation, but the court is going to defer to the wishes of the biological parents
  140. enforcement of child support is given full faith and credit
  141. modification of child custody: based on changes in circumstances from the time at which the original order was granted and based on best interests of the child
  142. modification of child custody: most frequent reason is relation, which is also based on abest interests of the child
  143. modification of child custody: factors:
    • the nature, quality, and involvement of the child with the parent that is not seeking relocation
    • the age and needs of the child
    • the impact on the child
    • the ability to preserve the relationship with the non-custodial parent
  144. a custody order terminates upon a custodial parent's death or when the child reached teh age of 18
  145. in the case of death, the surviving parent usually assumes custody
  146. non-marital children have the right to share in wrongful death damages, but they do not have the right to share in inheritance unless some paternity filiation has been filed
  147. Uniform Child Custody Jurisdiction Enforcement Act: "home state" is the state where:
    • the child has lived for 6 months, or since birth if the child is less than six months old OR
    • where the child resided in the last 6 months and one parent continues to reside
  148. the home state has exclusive, continuing jurisdiction
  149. if a kidnapping and child abroad with a parent, civil matters may be dealt with under the Hague Convention, criminal matters may be dealt with under the inte'l parenting kidnapping act; if domestic kidnap: parental kidnapping prevention act
  150. premarital agreements must meet K requirements: consideration, consent, lack of duress
  151. I won't marry you unless you sign this is not duress
  152. because they are contracts, the supreme court has jurisdiction over disputes concerning separation agreements; no family court jurisdiction
  153. any property settlement agreement must be entered into before the divorce decree is finalized
  154. marital agreements are valid as long as they are fair, reasonable, voluntary, and made with full disclosure and consent
  155. court can always modify an agreement for child support or custody
  156. if one or both parties are unrepresented at the time they enter an agreement, the court may review the terms of an agreement to make sure they are fair, reasonable, and voluntary.
  157. adoption
  158. family offenses
  159. abortion

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