Domestic Relations

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Domestic Relations
2011-07-14 18:00:01
NY Bar Exam

NY Bar Exam
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  1. What claims and actions before marriage have been abolished?
    Those for breach of contract to marry, alienation of affections, crimninal conversation, seduction, and jacitation of marraige (i.e., where one falsely holds self out as married).

    New York also frowns on claims for damages arising out of matrimonial actions that are similar to such "heart balm" actions.
  2. What claims and actions before marriage have not been abolished?
    • To enforce a judgment;
    • For deceit; and
    • To recover gifts made solely in consideration of marriage.
  3. Are sister state or foreign judgments based on "heart balm" claims entitled to enforcement?
    Yes, as a matter of full faith and credit or comity.
  4. Can an action for deceit be maintained on the basis of defendant's fradulent misrepresentations of capacity to marry or if the defendant fraudulently misrepresented that the marriage ceremony was legitimate?
    Yes. But cohabitation preceding the fraud, or discovery of fraud before cohabitation, will bar recovery.
  5. Can an action be maintained to recover gifts if the sole consideration for their transfer as an impending marriage that has not occured?
    Yes. But there can be no recovery if the donor was married to another when the gift was given. Fault is not a defense.
  6. What is the requirement on a premarital contract for it to be enforceable?
    It must be freely made, in writing, subscribed by the parties, and acknowledged or proven in the manner required to record a deed.
  7. Are contracts requiring dissolution of marriage or providing for procurement of grounds for divorce valid?
  8. Can spouses contract to relieve liability to support the other spouse in such a manner as to result in the other spouse becoming a public charge?
  9. What rights may a premarital contract relate to?
    Inheritance rights; distribution of property; maintenance; and child care, custody, and support.
  10. If the mariage fails to take place, are the parties to a premarital contract still bound?
    No, they are discharged.
  11. Does a valid premarital agreement survive a subsequent annulment or divorce?
  12. What is the statute of limitations for bringing an action or claiming a defense arising from a premarital contract?
    Three (3) years.
  13. Will failure to obtain a marriage license render the marriage void?
  14. When must a ceremony occur?
    At least 24 hours (but no more than 60 days) after issuance of the marriage license.
  15. Who may perform the marriage ceremony?
    Clergy, certain ethnic culture leaders, mayors, justices, judges, or appointed marriage officers.
  16. If the marriage is performed by clergy or magistrate, is any particular form of ceremony required?
  17. Can parties enter into a common law marriage in New York?
  18. Does New York recognize as valid common law marriages contracted outside New York?
    Yes, so long as they were valid where contracted.
  19. What are the requirements of a contractual marriage?
    A contractual marriage requires a license and a written contract signed by both parties, subscribed in New York by the parties and two witnesses, stating the residence of the parties and witnesses and the date and place of marriage, and acknowledged by the parties and witnesses before a judge of a court of record of New York State.
  20. Is a marriage at sea recognized in New York?
    Yes, if valid under the law of the shipowner's domicile.
  21. Do New York courts recognize an action based upon an implied contract for personal services between unmaried people living together?
    No. But cohabitation does not disable parties from making an agreement within normal rules of contract law.
  22. What is the age requirement to marry?
    18. Persons 16 or older, but younger than 18, who have their parents' consent may marry. For persons 14-16, written approval and consent by a supreme court or Family Court judge is required in addition to parental consent.
  23. In New York, marriages between which classes of persons are deemed incestuous and are therefore void?
    (i) Ancestor and descendant; (ii) brother and sister of whole or half blood; or (iii) uncle and niece, or aunt and nephew.

    NOTE: Marrying your first cousin is NOT incestuous.
  24. Do same-sex couples have the right to marry in New York?
  25. Does New York recognize same-sex marriages validly entered into in other jurisdictions?
  26. What are grounds for annulment by lack of personal capacity?
    Lack of mental capacity, fraud, duress, and physical incapacity (impotency or incurable physical imperfection).
  27. Can persons with living spouses marry?
    No, there is no bigamy in New York.
  28. Can a prison inmate serving a lfie sentence marry?
    No, such a marriage is void.
  29. Can persons imprisoned for life marry while on parole or after dischrage therefrom?
  30. Have gender classifications in alimony and spousal rights been eliminated?
  31. Can spouses sue each other, and third parties, for injury to persons or property arising in tort?
  32. Can a husband and wife make contracts iwth each other?
    Yes, except for contracts that alter or dissolve marriage or waive the right of support.
  33. Do a married woman's contracts bind her husband or her husband's property?
  34. Can a wife own and convey her own separate property?
  35. Does a wife alone have a right of action for her wages?
    Yes, and the law presumes that she alone is entitled to them.
  36. Is a wife guilty of her own crimes, and is a husband guilty of his?
  37. Can spouses by convicted of crimes committed against each other?
  38. Is there a marital exemption for rape?
    The marital exception for rape in the New York statute is unconstitutional.
  39. Can orders of protection issued by the Family Court be modified by the supreme court?
    No, except on motion and notice to the nonmoving party.
  40. Can a local criminal court modify a Family Court or supreme court order of protection?
    Yes, upon the filing of a sworn affidavit alleging that the issuing court is not in session and that good cause is shown, including a showing that the existing order is insufficient for the purposes of protecting the petitioner and/or members of the petitioner's family.
  41. Does a wife's domicile follow her husband's?
    Not necessarily.
  42. If the wife commences a matrimonial action while lviing in New York, will the fact that her husband lives elsewhere presevent her from being found to be a New York domiciliary?
  43. Must a wife adopt her husband's name?
    No, it is optional.
  44. Can a change of name be effected by usage and habit?
    Yes, provided there is no fraud or interference with rights of others.
  45. Must every judgment or decree of divorce or annulment provide that each party may resume the use of her premarriage surname?
  46. Does each spouse have the obligation to suport the other?
  47. How is the extent of support determined?
    It may be based on a "means" test or a "needs" test.

    The husband is liable for the wife's antenupital debts only to the extent of property, if any, that he has acquired from her. He is liable also for postnuptial debts that the wife has incurred for her support. (Note: A court is likely to find that a wife is similarly liable for her husband's antenupital and postnupital debts.)

    Liability for support may continue, in the form of maintenance, after dissolution of marriage.
  48. Will agreements during the marriage to liquidate support rights into a cash paymebt be enforced?
  49. Will courts establish family budgets?
  50. What remedies can a spouse who is not being supported seek?
    She can seek support in Family Court. An order may be enforced by issuing a warrant for the arrest of the disobedient respondent, jailing the respondent for up to six months, requiring the respondent to participate in a rehabilitation program, putting the respondent on probation, requiring that the respondent post bond, sequestering the respondent's assets, suspending the respondent's driving privilege and/or state professional or business license, entering a money judgment, or making an income deduction order.
  51. Can a creditor who has furnished necessaries to a wife, or a wife who has spent her own money for them, recover such expenses from the husband?
    Yes. A creditor can recover from the husband other debts incurred by the wife if the purchases were within the scope of the wife's authority.
  52. May fault or misconduct influence the courts in deciding whether to enforce a right to support?
  53. What rights do children conceived by artificial insemination have?
    They are deemed the marital, natural offspring of the hsuband and the wife if they are born to a married woman; the procedure is performed by a person authorized to practice medicine; the husband and the wife give written, executed consents; and the person who performs the procedure certifies that he has done so.
  54. Do parents exercise joint guardianship with equal powers, rights, and duties?
  55. How can termination of parental rights arise without judicial action?
    Upon (i) the minor's marriage (though guardianship of the minor's property continues); (ii) surrender of hte minor to an authorized adoption agency; or (iii) life imprisonment to the parent.
  56. When may judicial termination of parental rights be ordered?
    Due to: (i) abandonment; (ii) inability to care for a child due to mental illness ore retardation; (iii) permanent neglect; or (iv) severe or reporeted child abuse.
  57. What is the standard of proof for judicial termination of parental rights?
    "Clear and convincing evidence."

    Unlike custody proceedings, judicial termination is total and irrevocable.
  58. Is judicial termination of parental rights total and irrevocable?
  59. What are the requirements of a finding of neglect?
    (i) The child is in near or impending danger; and (ii) the parent did not act as a reasonable parent would under similar circumstances.

    The risk to the child must be balanced with the harm that removal could cause.
  60. For how long are parents liable for the support of children?
    Until age 21.
  61. What factors will a court consider in making its award for child support?
    All relevant factors, including: (i) the financial resources of the parent and those of the child, (ii) the physical and emotional health of the child, (iii) the standard of living the child would have enjoyed had the family remained intact; (iv) the tax consequences to the parties, and (v) the nonmonetary contributions that the parents will make toward the care and well-being of the child.
  62. How may a support obligation be enforced?
    Through a "payroll deduction order."
  63. What will be the crimimal consequences of failure to provide support when legally required and able to do so?
    Criminal prosecution for non-support of a child.
  64. What are parents' obligations to children with special dependencies or disabilities?
    Parents must support institutionalized juvenile delinquents, persons in need of supervision, and children under age 21 who receive public assistance or are in a mental institution.

    Parents need not support youthful offenders.
  65. Are support rights conditioned on obedience to reasonable demands by parents?
  66. May a child bring a support proceeding in Family Court?
  67. Does a parent have a duty to provide a child a college education?
    Generally, no. However, when a child's academic ability, the parents' financial ability, and the parents' standard of living (including their own education) so warrant, such a duty may be imposed by the court.
  68. Does intrafamilial immunity from tort liability exist?
    No, it has been abolished.
  69. Will contributory negligence or culpable conduct of a parent or custodian be imputed to the child?
  70. Do parents owe a duty to protect others from harm caused by a child's use of a dangerous instrument?
    Yes, if the instrument was improvidently provided to the child by a parent who is aware of and able to control its use.
  71. Is a parent or guardian having custody of a child who is 10 or more years old but younger than 18 liable if the child willfully, maliciously, or unlawfully damages or destroys another person's real or personal property?
  72. Do restitution and emancipation of the child prior to occurence of damages constitute defenses?
  73. Who qualifies as a juvenile delinquent?
    A child between ages 7 and 16, who commit an act that would be a crime if committed by an adult.
  74. How long may placement as a juvenile deilnquent last?
    Up to five years for 13- to 15-year -olds convicted of major felonies.
  75. May persons in need of supervision (truants, ungovernable) be placed outside the parents' control?
  76. Who may be accorded youthful offender treatment?
    Children between ages 16 and 19, if statutory conditions are met.
  77. Which contracts are valid despite infancy and are binding on a child, if otherwise valid?
    • Contracts by 18-year-olds;
    • Realty contracts related to a husband and wife's home;
    • Contracts related to artistic or athletic services;
    • Life insurance (minors age 15 and six months or older can insure their own lives or the life of any person in whom the minor has an insurable interest); and
    • Student loans (minors age 16 and older are bound by loans for education involving state institutions).
  78. Do persons older than 5 and younger than 21 years old, without a high school diploma, have a right to attend public schools maintained in the district where they reside without tuition cahrge?
  79. Who is required to attend school?
    Persons older than 6 and younger than 16 years old.
  80. Who are nonmarital children?
    Children conceived or born out of wedlock, unless their parents thereafter become married to one another.
  81. Is a child's status as a marital child affected by the fact that the parents' marriage is void, voidable, annuled, or judicially declared void?
  82. Can a nonmarital child recover damages for the wrongful death of his mother or father?
  83. Can the parent of a nonmarital child recover damages for the child's wrongful death?
  84. Can a nonmarital child and his issue inherit from his mother and her kindred?
  85. When can a nonmarital child and his issue inherit from his father and parental kindred?
    • There has been an order of filiation declaring paternity;
    • The father has signed an instrument acknowledging paternity;
    • Paternity has been established by clear and convincing evidence and the father openly and notoriously acknowledged the child as his own; or
    • A blood genetic marker test has been administered to the father and, together with other evidence, establishes paternity by clear and convincing evidence.
  86. Can parents inherit from their nonmarital child?
  87. Can a state bar unacknowledged nonmarital children from sharing with marital children and acknowledged nonmarital children in their father's workers' compensation benefits?
  88. Can a state deny welfare or public assistance benefits to households with nonmarital children?
  89. Who is chargeable witht he support of a nonmarital child?
    Each parent. If possessed of sufficient means or able to earn such means, each parent may be required to pay for a child's care, maintenance, and education.
  90. Can a father escape his support obligation by claiming the mother misrepresented her use of contraceptive measures?
  91. Who will support the child in case of neglect or the parents' inability to provide for the child's support and education?
    The county, city or town.
  92. What are filiation proceedings?
    Proceedings used to estalbish parental status (i.e., paternity and maternity).
  93. What court has exclusive jurisdiction over filiation proceedings?
    Family court.
  94. Where may filiation proceedings be brought?
    In the county where the mother, child, or alleged father resides or is found.
  95. When may filiation proceedings br brought?
    During pregnancy or after the birth of the child, but not after the child's 21st birthday, unless parental status has been acknowledged in writing or by furnished support (in which case the statute is waived).
  96. Who may bring filiation proceedings?
    The mother father, welfare officials, child's next of kin, guardian, one standing in loco parentis, or any authorized representative of a charity or philanthropy.
  97. What is required to prove parental status?
    Clear and convincing evidence.
  98. Are results of a blood genetic marker test considered conclusive of parental status?
    Only if the test excludes the alleged parent.
  99. When is there a rebuttable presumption of paternity?
    When results of a blood genetic marker test indicate a 95% probability of paternity. If not rebutted, this presumption will give rise to liability for support of the child.
  100. May a mother's uncorroborated allegations of paternity be introduced as evidence in a paternity proceeding?
  101. May a respondent's allegations of access by others be introduced as evidence in a paternity proceeding?
    Yes, but they may require corroboration.
  102. When will the court dismiss a filiation proceeding?
    If it finds the male party not to be the father.
  103. When will the court make an order of filiation?
    If it finds the male party to be the father.
  104. What will the court in a filiation proceeding do if the respondent doees not appear?
    Award temporary support.
  105. When may a court declare paternity (or refuse to do so) irrespective of biological fatherhood?
    If it is in the best interests of the child. For example, courts have: refused to alow a man to disclaim paternity of a child he had believed to be and treated at his own when it was discovered that he was not the biological father; refused to allow a biological father to assert paternity when it would be disruptive to the child; and refused to allow a child's mother to assert another man is the biological father when it would disrupt the relationship the 12-year-old child had with the man she had treated as her father for her entire life.
  106. What is paternity by estoppel?
    Where a court refuses to allow a man to disclaim paternity of a child he had believed to be his.
  107. Are foster parents entitled to intervene in any proceeding involving custodyy of the child?
    Yes, as are any who have cared for a child for more than 12 months.
  108. Who can adopt?
    An adult unmarried person, or an adult husband and adult wife together.

    An adult or minor husband and his adult or minor wife, together, may adopt the child of either.
  109. What courts have original jurisdiction in adoption proceedings?
    The Family Court and the Surrogate Court have concurrent original jurisdiction.
  110. When is an adoptive child's consent required?
    If the child has reached the age of 14, unless the judge or surrogate exercises his discretion to dispense with this requirement.
  111. Whose consent is required if the adoptive child is a marital child and has not reached the age of 18?
    Both birth parents.
  112. How is a father's right to a continued parental relationship determined?
    By his acts of parental responsibility (e.g., acknowledgment of paternity, payment of prengancy and birth expenses, steps taken to esablish legal responsibility, and other factors showing commitment to the child).

    In the case ofa newborn, the father must be willing to assume custody, not merely block the adoption of others.
  113. When is parental consent unnecessary?
    Consent is not required from any parent who: (i) abandomed the child; (ii) surrendered the child to an authorized agency for adoption; (iii) has been superseded by a guardian appointed under statute; (iv) by reason of mental illness or retardation, is unable to provide proper care for the child; (v) has been found to have permanently neglected the child; or (vi) executed an instrument denying paternity ot consenting ot the child's adoption.
  114. When must the adoptive parties participate in a three-month trial residence of the child in the adoptive home?
    If the adoptee is younger than 18 years.
  115. What are the final steps in adopting a person?
    A disinterested investigation must be conducted, and an order of adoption must be issued.
  116. When is access to records revealing the identity of the birth parents permitted?
    Only upon good cause shown (mere curiosity is insufficient).
  117. Are private placement procedures similar to those required for adoption agencies?
  118. Is religious matching of a child with parents, home, or agency common?
    It is done insofar as practicable.
  119. Does adoption sever a natural parent's rights and duties to the child?
  120. In interpreting a will or trust, are adopted children and their issues strangers to any birth relatives?

    EXCEPTION: "Issue" when used in wills or trusts includes issu who have been adopted by someone else if the testator or creator is a birth grandparent or descendant thereof and an adoptive parent is (i) married to the child's birth parent; (ii) the child's natural grandparent; or (iii) a descnednat of the child's birth grandparent.
  121. May foster parents apply for adoption?
    If they have cared for a child continuously for more than 12 months. They will be given preference as against other applicants.
  122. What remedies are available when visitation is denied to a parent, sibling, or grandparent by the adult with custody of the child?
    A special habeas proceeding is available.

    Note that "parents" in the statute means only bioligocal and adoptive parents; thus, many people who act as parents (e.g., stepparents) have no visitation rights.
  123. Do grandparents have standing to seek court-ordered visitation?
    Yes, even when the parents object.

    However, grandparents do not get automatic vistation rights over a parent's objections. The grandparents have a "high hurdle" to surmount before visitation will be granted.

    • In all situations except where a parent has died, (i) there must be a sufficient existing relationship between the child and grandparent to warrant visitation, and (ii) visitation must be in the child's best interests. (Where a parent has died, grandparents have an absolute right to standing and the court considers only the child's best interests.)
  124. Will a parent's determination as to the appropriateness of a grandparent visitaiton be given "special weight'?
    Yes, so long as the parent is fit. A judge may not override a fit parent's decision regarding visitation merely because he feels a "better" decision could be made or that visitation would be in the child's best interest.
  125. May grandparents bring a speical proceeding to gain custody of the child?
    Yes. A showing of extraordinary circumstances is required. Such extraordinary circumstances exist when the child has lived away from the parent and with the grandparent for 24 consecutive months, or if the court finds it in the best interests of the child.
  126. What is the only court that can grant a matrimonial action?
    The Supreme Court of New York. The supreme court may refer incidental matters such as support, custody, or visitation to the Family Court.
  127. When does New York have jurisdiction over the defendant in a matrimonial action?
    As long as New York is the domicile of one party to the marriage.

    Ancillary questions such as support and alimony may be addressed only if New York has jurisdiction over the person of the party adversely affected by the determination.
  128. When can a New York court exercise long arm personal jurisdiction over support or alimony in a matrimonial action?
    If the party to be affected had, at some time in the recent past, a connection with the state of New York and the party seeking support is a resident of or domiciled in the state at the time the claim is made.
  129. Do failure to met durational requirements deprive the court of subject matter jurisdiction?
  130. What is the defendant's remedy if the trial court errs in finding that a residence test has been met?
    To appeal. There can be no collateral attack on the judgment.
  131. When can parties get into New York courts if both are New York residents when the matrimonial action is commenced and the cause of action arose in New York?
  132. When can a matrimonial action be heard in a New York court after one year's continuous residence by the party immediately preceding commencement?
    If, in addition, (i) the marriage was entered into in New York; (ii) the parties have resided together in New York as husband and wife; or (iii) the cause of action arose in New York.
  133. When can a matrimonial action be heard in a New York court after two years' continuous residence by one party immediately preceding commencement of the action?
  134. What must the plaintiff serve the defendant with in a matrimonial action?
    Service of the summons and a copy of the statutory automatic orders.
  135. What do the statutory automatic orders in a matrimonial action prevent either party from doing, without written consent of the other or court order?
    • In any way dispose or encumber any property;
    • In any way dispose of assets held in various accounts;
    • Incur unreasonable debts;
    • Remove the other party or children from any insurance coverage; or
    • Change beneficiaries on any policies.
  136. Can either party move for summary judgment in a matrimonial action?
    Yes, but summary judgment may not be granted in favor of the nonmoving party.
  137. What are the proof requirements of judgment by default in a matrimonial action?
    Competent oral proof or written proof that may be considered on a motion for summary judgment.
  138. For how long are matrimonial proceedings, and files pertaining thereto, confidential?
    100 years.
  139. Is financial disclosure in all matrimonial actions involving issues of alimony or support compulsory?
  140. What must each party provide the other with in all support proceedings in Family Court?
    A sworn statement of net worth, including all income and assets wherever situated and a list of all assets transferred during the preceding three years or during the marriage, whichever is shorter. Mere exchanges in the course of business need not be disclosed.
  141. What is the punishment for failure to disclose financial information in a matrimonial action?
    Penalties provided for in CPLR 3126 (examination before or during trial), or the court granting the relief demanded.
  142. Is a trial by jury permitted for factual issues in divorce, declaration of nullity, and annulment actions?
    Yes, except on the issue of physical incapacity. It is not permitted in a separation action.
  143. When do matrimonial actions abate?
    On the death of the plaintiff before entry of judgment.

    EXCEPTION: Annulment on grounds of mental illness, mental retardation, or wrongfully obtained consent.
  144. Can a foreclosure action be permitted if a litigant to a matrimonial action gives a mortgage or security interest on his primary residence to his attorney to secure payment of legal fees?
    No. However, the litigant will still be responsible for the indebtedness secured by the mortgage or security interest.
  145. Is there a one-year residence requirement for access to divorce courts?
  146. Are requirements that an indigent pay costs and fees, as a condition of access to divorce courts, constitutional?
    No. They unconstitutionally deny such access.
  147. What are the specific types of matrimonial actions?
    • Delcaration of Nullity;
    • Annulment;
    • Separation; and
    • Divorce.
  148. What are the permissible grounds for a declaration of nullity?
    Incest or bigamy. The marriage is void. Parties may walk away from void marriages without court order. Collateral attack is permitted.

    NOTE: When an impediment causing the marriage to be void is removed (e.g., spouse from previous marraige dies), the marriage becomes merely voidable, and thus subject to ratification.
  149. What are the permissible grounds for an annulment?
    • Nonage;
    • Mental defects;
    • Physical incapacity;
    • Wrongfully obtained consent; or
    • Five Years' incurable mental illness.
  150. Describe nonage as a gorund for a voidable marriage by annulment.
    If either party is younger than 18 years old, the marriage may, in the court's discretion, be annulled. A marriage will not be annulled on the ground of nonage at the suit of a party who had attained the age of legal consent when the marriage was contracted, or by a party who freely cohabited with the other spouse for any time after attaining that age.
  151. Describe mental defects as a ground for a voidable marriage by annulment.
    A marriage may be voidable because a party is incapable of consenting to marriage for lack of understanding: i.e., mentally retarded or mentally incompetent. As to both grounds, if no relative brings an annulment action, the court may allow anyone to bring the action as next friend at any time during the lifetime of both parties to the marriage.
  152. Describe physical incapacity as a ground for a voidable marriage by annulment.
    A marriage may be voidable because one of the parties is physically incapable of entering into the married state, if the incapacity is incurable. The action must be commenced before five years have expired since the marriage was contracted. Physical incapacity is an exception to the rule allowing trial by jury in annulment actions.
  153. May a marriage be voidable by annulment because oen of the parties consented to it by reason of force, duress, or fraud?
  154. When may an annulment action based on force or duress be maintained?
    • At any time by the party whose consent was wrongfully contained; and
    • During the lifetime of the other party, by the parent, guardian, or relative of the person whose consent was wrongfully obtained.
  155. What is required for an annulment action based on fraud?
    Fraud must involve a failure to disclose or a misrepresentation of something vital to the marital relationship (e.g., drug addiction, impotency, mental illness, prior marital status, intent to have children, etc.).
  156. When may an annulment action based on fraud be maintained?
    If the plaintiff is the defrauded party, the annulment action must be brought within three years from when the plaintiff discovered the relevant facts.
  157. Can voluntary cohabitation make certain grounds of annulment ineffective?
    Yes. If the ground alleged is force, duress, or fraud, voluntary cohabitaiton before commencement of the action (and in the case of fraud, with full knowledge of the facts constituting the fraud) bars the annulment.
  158. What statute of limitation applies to the annulment of voidable marriages if no other statute of limitations is specified?
    The residual six-year statute.
  159. What must the plaintiff prove in an annulment action?
    That there has been no cohabitation between the parties, such as would bar a judgment of annulment, and in actions based on retardation or incompetence, that the condition persists.
  160. What is the effect of annulment?
    Children are considered marital cildren. Tenancies by the entirety end, and prior wills are generally revoked.
  161. What are the grounds for separation?
    • Cruel and inhuamn treatment;
    • Abandonment;
    • Three consecutive years' imprisonment during marriage;
    • Adultery; and
    • Failure to Support Spouse.

    NOTE: All grounds available for divorce are available for separatiopn. (Note that in a divorce action, abandonment must be for one year.) Separation has the additional ground of failure to support.
  162. Define cruel and inhuman treatment.
    A defendant's conduct that so endangers the plaintiff's physical or mental well-being as to render it unsafe or improper for the plaintiff to cohabit with the defendant.

    Cruel and inhuman treatment is a ground for separation or divorce.
  163. Define abandonment.
    A wilful and voluntary departure, without justification and without intent to return.

    Abandonment is a ground for separation or divorce (if divorce, must be for one year or more).

    Abandomnent is considered a running offense (no S/L).
  164. What are some examples of constructive abandonment?
    Refusal to engage in sexual intercourse and changing a lock to exclude the other spouse from the dwelling.
  165. Will the defendant's imprisonment for three consecutive years or more be a ground for separation or divorce?
  166. When is adultery not a ground for separation or divorce?
    • The offense is committed with procurement by or with connivance of the plaintiff;
    • The parties voluntarily cohabit with knowledge of the offense;
    • The plaintiff has also committed adultery under circumstances such that the defendant, if innocent, could have obtained a divorce on this ground; or
    • The plaintiff fails to commence the action within five years of discovering the offense.
  167. Is the neglect or refusal to provide support if chargeable with such support ground for separation?
    Yes. It is not a ground for divorce.
  168. Is the plaintiff's misconduct a complete defense in a matrimonial action for separation?
    Yes, if established.
  169. What is the statute of limitations for separation actions?
    Unless the action is based on adultery or abandonment, the statute of limitations is five years from the time the grounds arose.

    In contrast, the statute for adultery begins running at the time of discovery of the offense.

    Abandonment is considered a running offense.
  170. What are the grounds for a divorce?
    • Cruel and inhuman treatment;
    • Abandonment for one year or more;
    • Three consecutive years' imprisonment during marriage;
    • Adultery; and
    • Irretrievable breakdown (no-fault divorce).
  171. Is there a right to jury trial of facts needed to establish grounds for divorce?
  172. Is there an affirmative defense to divorce?
    Only if the ground is adultery (i.e., adultery on the part of the other spouse); it is not a defense to any other grounds for divorce.
  173. On what ground can a conversion divorce be granted?
    • The husband and the wife have lived apart pursuant to a separation decree for at least one year after the grant of the decree; or
    • The husband and the wife have lived apart pursuant to a written, properly acknowledged separation agreement.
  174. Will a spouse's breach of a separation agreement that goes to insignificant provisions of the agreement preclude the granting of a conversion divorce?
  175. May a conversion divorce be granted if the separation agreement is void ab initio as a result of fraud, duress, or incapacity?
  176. May a divorce be granted if both the plaintiff and the defendant have been guilty of adultery?
  177. May a divorce be granted if both the plaintiff and the defendant have been guilty of cruelty?
  178. Is there a reubttable presumption that all children begotten before the commencement of the divorce action are marital children?
  179. Describe the special proceeding to dissolve marriage on ground of absence (enoch arden).
    A petitioner has access to the court if: (i) the petitioner resides in New York and has resided here for one year immediately preceding commencement of the proceedings; or (ii) New York was the matrimonial domicile when the absent spouse disappeared. The petition must state that (i) the spouse has been absent for five successive years; (ii) the spouse is believed to be dead; and (iii) a diligent search has been made, revealing no evidence that the spouse is alive. If the court is satisfied that all such allegations are true, it may issue a final order dissolving the marriage.
  180. What is seprate property for purposes of equitable distribution?
    (i) Property acquired before marriage; (ii) Property acquired by inheritance or gift from a nonspouse; (iii) Compensation for personal injuries; (iv) Property acquired in exchange for or by increase in value of separate property; and (v) Property described as separate by written agreement of the parties.

    Separate property remains as such.
  181. What is marital property for purposes of equitable distribution?
    All property acquired by either spouse during the marriage (unless contrary to any agreement of the parties).
  182. What circumstances must the court consider when distributing marital property?
    All circumstances of the case, including financial circumstances of each spouse, duration of the marriage, age and health of the parties, maintenance awards, contribution to acquisition of marital property, tax consequences to the parties, loss of health insurance, and economic fault of the parties.

    Distributive awards may also be made to supplement equitable distibution.

    NOTE: The marital fault of a party is not a proper consideration in determining the equitable distribution of marital property upon dissolution of a marriage unless it is egregious.

    NOTE: A divorce converts a tenancy by entirety into a tenancy in common.
  183. What is the marital property presumption?
    All property, unless clearly separate, is presumed to be marital property. The burden is on the titled spuse to rebut the presumption.
  184. Is earning capacity from advanced education marital property?
    Yes. Any equitable distribution based on it should be considered when awarding maintenance to avoid "double counting" of ita value.
  185. Is a vested but unmatured right to a pension marital property?
  186. Is a gift to both spouses marital property?
  187. Is a future life insurance benefit in which a spouse has no vested interest marital property?
  188. Can separate property or an increase thereof become marital property?
    Yes, e.g., separate property deposited in a joint bank account; increase in value of separate property during marriage due to contribution of the other spouse as homemaker and parent.
  189. Valuation for purposes of equitable distribution is of what date?
    The date of the commencement of the current action, rather than any earlier, discontinued actions.
  190. What are maintenance payments?
    Support payments.
  191. When is temporary maintenace awarded?
    To provide for a spouse during the pendency of an action.
  192. How is the amount of temporary maintenance determined?
    By statutory guidelines.
  193. When does temporary maintenance terminate?
    Upon issuance of the final maintenance award or the death of either party.
  194. Can a court order maintenace to meet the reasonable needs of a party?
    Yes, absent a written agreement.
  195. What factors are considered in dertermining the amount and duration of maintenance?
    Parties' incomes, length of marriage, capacities for self-support and present and future earning capacities, custody of children, parties' ages and health, and the equitable distribution of marital property.

    While the marital fault of a party is generally not a proper consideration in determining the equitable distribution of marital property upon dissolution of a marriage, it may be considered when determinign maintenance provisions.
  196. When do maintenance payments terminate?
    Upon the death of either party, marriage by the recipient, or modification of the final judgment.

    In addition, a court may, in its discretion, annul or modify any support provisions on notice motion and proof that the spouse is habitually living wiht another person and that they are holding themselves out as husband and wife.
  197. Is maintenance suspended during any reconciliation between the parties?
  198. Does the death of either party, or the remarriage or cohabitation of a spouse affect maintenance arrears?
  199. When can maintenance arrears that have not been reduced to judgment be annulled or modified?
    Only upon a showing of good cause for failure to request relief prior to the accrual of the arrears. Arrears that have been reduced to judgment may not be annulled or modified.
  200. How can the maintenace award be paid?
    In lump sum or periodically in lieu of or supplementary to distribution of property.
  201. What does custody of a minor mean?
    Legal custody (the right to make major decisions affecting the child's life) or physical custody (actual possession and control of the child.

    Joint custody can mean joint legal custody, joint physical custody, or both.
  202. What is paramount in determining custody?
    The best interests of the child.
  203. Is an agreement of the parents as to custody controlling?
    No, but it is to be accorded due regard.
  204. Does either parent have a prima facie right to custody?
  205. Will the court go along if the parents agree to joint custody?
    Yes, unless the arraignment is not in the child's best interest.
  206. What factors will the court consider in determiuning whether joint custody is appropriate?
    Numerous factors, including the fitness of each parent, the child's preference, the parents' ability to communicate and cooperate, level of involvement in the child's life, geographical proximity, and the effect of the joint custody on the child's psychological development.
  207. Does a noncustodial parent enjoy a natural right of regular and frequent visitation?
    Yes, absent exceptional circumstances (e.g., child abuse or neglect).
  208. May grandparents seek visitaitonw ith their grandchildren even when both parents object?
    Yes, but they must show a sufficient existing relationship with the grandchildren (or an effort to establish one).

    NOTE: This standard may be unconstitutional.
  209. May siblings or stepsiblings also petition the court for visitaiton with each other?
  210. What must courts determine to approve a relocation by the custodial evidence?
    Courts must determine by a preponderance of the evidence that the relocation is in the best interests of the child.
  211. May either or both parents be ordered to pay an amount for the care, maintenance, and education of minor children?
  212. How do New York courts determine the amount of the child support obligation?
    Absent an agreement between the parties, the New York courts apply a mechanical formula.

    The formula applies a fixed percentage based on the number of children to the combined gross incomes (taxable and nontaxable) of the parents, then prorates the result between the parents based on their respective incomes.

    NOTE: A court may award temporary support without a showing of need even if financial information about the parties is unavailable.
  213. If a noncustodial parent's share of child support seems unjust or inappropriate, may the court adjust it?
    Yes, after considering several statutory factors, such as the financial resources of each parent and child, disparity of respective incomes, the standard of living the child would have enjoyed had the marriage remainded intact, visitation expenses, etc.
  214. Is a self-induced redution in income by the payor spouse sufficient to have child support or maintenance reduced?
  215. Can custody and child support provisions be annulled, modified, or amended on notice motion?
  216. When will a request for increased child support based on the fact that support is inadequate be granted?
    Upon showing (i) a substantial change of circumstances warranting an increase, and (ii) that modification is in the child's best interest.
  217. What must a motion for increased child support show if sought for reasons other than inadequacy?
    An unforseen and unreasonable change in circumstances warranting modification.
  218. Can arrears for child support be reduced or canceled?
    By statute, no, even if they have not been reduced to a money judgment.
  219. Are child support payments and arrears affected by denial of visitation rights?

    This is in contrast to maintenance payments.
  220. How may orders or judgments directing maintennace payments by one spouse or payment of child support be enforced?
    • A direction requiring a surety or reasonable security or cash deposit with the support collection unit;
    • Sequestration of property and possible sale of assets;
    • Entry of judgment for arrears, followed by enforcement and judgment;
    • An order of assignment or garnishment of wages;
    • Contempt proceedings; and
    • Interception of tax refunds.
  221. Under what circumstances can the court affect property rights?
    If the court has jurisdiction over the person, jurisdiction over the property, or is using the Uniform Interstate Family Support Act.
  222. What is the statute of limitations for enforcement of maintenance and child support arrears?
    20 years, regardless of whether they have been reduced to a money judgment.
  223. What is alternative dispute resolution ("ADR")?
    A variety of mechanisms used by New York courts for the resolution of legal disputes other than by litigation.
  224. What is mediation?
    A neutral third party attempts to facilitate a settlement by conferring informaly with the parties, jointly and in separate "caucuses," and focusing upon practical concerns and needs as well as the merits of each side's position on the issues in the case.
  225. What is neutral evaluation?
    An expert in the subject matter at issue receives a presentation on the merits from each side and then attempts to evaluate the presentations and predict how a court would decide the matter.
  226. What is arbitration?
    The parties agree to present evidence to a third party who then issues a decision determining the merits of the case. Arbitration may be binding or advisory, depending on the agreement of the parties, while mediation and neutral evaluation are nonbiding.
  227. Are all DR mechanisms confidential?
  228. When are separation agreements by the parties valid?
    If (i) freely made; (ii) they do not violate statutory public policy provisions (e.g., altering or dissolving marriage or support obligations of the spouse); and (iii) the parties are separated when they enter the agreement or become separated immediately thereafter.
  229. Are separation agreements governed by ordinary contract principles?
  230. In what courts are separation agreeements enforceable?
    Any court having jurisdiction over contract actions (not Family Court).
  231. When is a separate agreement nullified?
    When there is a resumption of cohabitation and marital relations with intent to abandon the agreement.
  232. Does a valid separation agreement bar suit for divorce?
  233. Will provisions for custody of children contained in the separate agreement be binding?
    No. The court decides the child's best interests.
  234. Does an invalid clause in a separation agreeement relieving a spouse of the support duty invalidate the entire agreement?
  235. Will a separation agreement survive a divorce decree?
    The presumption is yes, even if the agreement is silent as to survival.
  236. If a separation agreement terminates by its own terms or by merger with a divorce decree, how is the parties' relationship determined?
    According to the divorce decree alone.
  237. If a separation agreement is merged into a divorced decree, how can the parties enforce the agreement?
    Using enforcement procedures permitted in matrimonial actions.
  238. How can a petitioner modify support if there is no separation agreement or an agreement is merged into a divorce decree?
    The petitioner must show a substantial change of circumstances.
  239. If a separation agreement is incorporated and survives the divorce decree, can a court issue an order modifying an agreement?
    Upon a showing of extreme hardship, for such period of time as the court feels is applicable.
  240. What is an ex parte divorce?
    One rendered without personal jurisdiction over the defendant, based on the court's jurisdiction over the marriage.
  241. If both spouses are domiciled within the divorcing state, does it have jurisdiction over the marriage?
  242. May a state in which one spouse is domiciled grant a divorce even though the other spouse is not domiciled in that state and is not personally before the divorcing court?
  243. Does New York permit the divorce of parties who were married in the state?
  244. Can a defendant collaterally attack the divorce judgment if she was not personally before the divorcing court?
    Yes, by showing that the plaintiff was not domiciled within the divorcing state at the time the divorce was granted.

    The person attacking a divorce judgment must show facts occuring after the divorce (such as return to the prior home state) that tend to cast doubt on the plaintiff's intent to be domiciled in the divorcing state.
  245. If an ex parte divorce is held void for lack of jurisdiction, will the state give full faith and credit to the divorce?
    No. The state may then treat the spouses as still married to each other and may declare any subsequent marriages to others void on the ground of bigamy.
  246. In an ex parte divorce, can the court impose personal obligations on the absent spouse (e.g., alimony, child support).
    No, wth limited statutory xceptions.

    NOTE: After an ex parte divorce in another state, New York can award maintenance if it has jurisdiction over the parties.
  247. What is jurisdictional basis for a bilateral divorce, where the court has jurisdiction over both spouses?
    Exactly the same as in an ex parte divorce: subject matter jurisdiction over the marriage, established by domicile of one or obth parties or some other substantial relationship with the divorce state.
  248. What are the due process requirements for jurisdiction over a nonresident?
    When the plaintiff has established domicile in the divorce state and jurisdiction was obtained over the nonresident defendant by means of a long arm statute, a decree of divorce is entitled to full faith and credit only if the form and nature of the substituted service on the defendant meets due process of law requirements.
  249. Who can collaterally attack the validity of another state's divorce decree?
    Any interested party. Certain persons, howeer, will be estopped from making such an attack because of their relationship to the earlier proceedings.
  250. Does a person seeking to collaterally attack a divorce judgment need to be one of the spouse?
    No, he may be any interested party, e.g., a child.

    Such collateral attack will not bea llowed, however, if the third person is a privy of any party who might be estopped.
  251. Can a separate agreement be collaterally attackd by a party thereto on grounds of fraud and mistake after it has been incorporated into a valid, bilateral decree of divorce?
  252. Is a person who himself procured an ex parte divorce, or who participated in obtaining an ex parte divorce for another whom he has subsequently married, or who has relied on his spouse's ex parte divorce by remarrying attack the validity of the divorce?
    No, because of equitable estoppel.
  253. What is the Uniform Interstate Family Support Act?
    The Uniform Interstate Family Support Act provides methods of enforcement and guidelines for modifications of support orders issued in another state.
  254. How can courts enforce a support order by income withholding order?
    An income withholding order may be mailed directly to the obligor's out-of-state employer. This automatically triggers withholding unless there is a timely objection from the obligor.

    Alternatively, the order may be mailed to the support enforcement agency in the obligor's state to seek administrative enorcement of the order.

    UIFSA also provides for registration of a support order with a sister state through ocourt action. The issuing state sends the order to the state where the obligor resides, and the order is subject to the same enforcement procedures as if the order had been issued in that state.
  255. Can the nonissuing ocourt modify the support order?
    No, unless the partis no long reside in the issuing state or they consent in a record to the nonissuing court's assertion of jurisdiction to modify the order.
  256. What are the requirements of the Full Faith and Credit for Child Support Orders Act?
    FFCCSOA requires each state to enforce the child support orders of sister states, and prohibits modification of such orders by a foreign court unless the state seeking to modify has jurisdiciton and the original state no longer has continuing, exclusive jurisdiction.
  257. What are the purposes of the Uniform Child Custody Jurisdiction and Enforcement Act?
    To avoid jurisdictional disputes with courts in other states in matters of child custody and visitation, to promote interstate cooperation, and to facilitate the interstate enforcement of custody and visitation orders.
  258. When does a court have jurisdiction to initially enter or modify a child custody or visitation order?
    If the state (i) is the child's home state, or (ii) was the child's home state within the past six months and the child is absent from the state, but a parent or person acting as a parent (e.g., guardian) continues to live in the state.
  259. What is a child's home state?
    The state in which the child lived with a parent (or a person acting as a parent) for at least six consecutive months immediately before the commencement of the proceeding (or the state where the child has lived since birth if younger than six months old), disregarding temporary absences.
  260. When does the "home state" rule not apply, i.e., when does a court have jurisdiction to enter or moify a child custody or vistation order?
    If no other state has or accepts home state jurisdiction and (i) the child and at least one parent (or person acting as a parent) have a significant connection with the state, and (ii) substantial evidence concerning the child is available in the state.

    In addition, a court has jurisdiction to enter or modify a child custody or visitation order if no other state has jurisdiction under another test.
  261. When does the court that made the initial child custody or visitation determination no longer have exclusive continuing jurisdiction over the matter?
    When the court determines that: (i) neither the child nor the child's parents (or persons acting as parents) continue to reside in the state; or (ii) the child no longer has a signiicant connection with the state, and substantial evidence relating to the child's care, protection, training, and personal relatioships is no longer available in the state.
  262. When may a court that has jurisdiction decline to exercise its jurisdiction in a custody case?
    If it determines that it is an inconvenient forum under the circumstances and that a court in another state is a more appropriate forum.

    Additionally, a court may decline to exercise jurisdiction if the party seeking to invoke the court's jurisdiction has engaged in unjustifiable conduct (e.g., wrongfully taking the child from another state).
  263. When does a court have temporary emergency jurisdiction in a custody matter?
    If the child has been abandoned or it is necessary in an emergency to protect the child because the child or her sibling or parent is subjected to or threatened with abuse.
  264. Can a custody or visitation order of one state be registered in another state and enforced int hat state int he same manner as one of its own orders?

    In addition, the court can order the respondent to appear in person and award immediate physical possession of the child to the petitioner. The child may issue a warrant to take physical possession of the child if the child is imminently likely to suffer serious physical harm or be removed from the state.
  265. May a prosecutor, law enforcement officer, or other public official take any lawful action to locate a child, obtain the return of a child, or enforce a custody or visitation order?
    Yes, when requested by a court, or if there is a reasonable beleif that the person holding the child has violated a criminal statute.
  266. When must full faith and credit be given to child custody orders?
    If the jurisdictional standards of the Parental Kidnapping Prevention Act are met.
  267. Does the Parental Kidnapping Prevention Act provide for non-temporary emergency-based jurisdiction?
  268. Does New York recognize bilateral foreign divorces based upon the personal appearance of the petitioning spouse and the defendant spouse's voluntary apperaance through an attorney?
    Yes, if the petitioning spouse has satisfied residence requirements of the foreign nation granting the divorce.
  269. Are mail order divorces valid?
    No. New York does not permit equitable estoppel to be founded upon them.
  270. Are ex parte foreign divorces recognized?
  271. If the foreign judgment is an ex parte divorce, may a spouse seek equitable distribution of the marital property in New York?
    Yes, provided she obtains proper jurisdiction over the other spouse or his property in New York.

    If the court rendering the foreign divorce judgment had jurisdiction over both parties, the New York court will have jurisdiction to make an award of equitable distribution only if those issues have already been litigated.
  272. Does a divorce court in one state have the power directly to affect, by means of its judgment, title to real property located in New York?
  273. Can a sister state court, by rendering a valid divorce decree, cut off dower rights of a wife who does not appear in the divorce action and is not domiciled where the action is brought?