Domestic Relations New York Bar Exam Preparation Condensed Revision Notes
Matters that Precede Marriage
- Un married couple – un married cohabitants, living together, no plans to get married
- The enforceability of a contract between cohabitants? (if they break up)
NY- an express contract between cohabitants are valid
EXCEPTION – ONLY enforceable if the consideration is something else than sex, if it’s sex than its not valid
NY – will not imply a contract if they himself did not enter into a bargain.
- Living together, HAVE PLANS to marry - their contract is called Pre-marital agreement ( anti-nuptial, anti-nuptial agreement), economic matters they agree on e.g. that all they own the will split 50/50.
- is the agreement in writing
- signed by both parties (SOF satisfied)
iii. was the agreement freely made (any duress would not be enforceable)
- Fair & reasonable at the time it was made
- Must not be unconscionable at the time of the divorce
RIGHT OF A CHILD BORN TO UNMARRIED COUPLE
Note – Non marital child – has the same rights exactly as a marital child, much of this is the constitutional grounding doctrine to protect the child’s rights.
- Who’s the daddy?
- The father is willing to acknowledge (there is a special proceeding) and if mother agrees that issue is settled.
- If father does not agree they you litigate
- The procedure to establish the father in NY is called Filiation proceeding
- takes place in the family court
- can be brought by the mother or
- child through the guardian or
- state of NY – to pin the biological father so that the child does not depend on state support.
NOTE – MUST file the proceeding before the child reaches 21.
- There are 4 evidential points
- Clear & convincing evidence is required to establish that D is the biological father
- The mother’s testimony of sexual access by D does not need to be corroborated.
- D’s evidence of sexual access between the mother and the other men must be corroborative
- If you offer DNA evidence (can be ordered by any side or the motion of the judge), and DNA evidence excludes D, that is the end of the case and proves that D is not the father. If DNA says 95% or more probability that D is the father that shifts the burden of proof to D.
Note – If D is a judicated father than that D has all the obligations of the father.
- NY- Follows an equitable estopple
- A man who has erroneously represented himself as the father, can be denied or precluded (estopped) from denying paternity, if the child has justifiably relied on representation, and it would be detrimental to the child.
- whether the court will, will be determined on specific facts – this work both ways, if mother listed someone-else on the birth certificate, she can be estopped from suing someone-else.
To get married 2 things
- Licence – so that NY state can examine you have capacity
- old enough
b .not insane (more to come later on as the capacity is not tested when it comes to licenses, it is tested when breaking up)
- Ceramony – 3 requirements
- someone to conduct the marriage, - clergy, a civil officer etc
- Witness – 2 are customary
- Exchange promises - no form or words in particular that you have to use.
- Second way to get married
- Common way marriage – A marriage not solemnized in the ordinary way (i.e., there was no ceremonial wedding), but created by an agreement to marry followed by cohabitation and holding oneself out as married.
- This is NOT THE LAW IN NY, however if a couple marry in of the permissible states, they will be treated in NY AS MARRIED.
NOTE –NY permits same sex marriage
TERMINATION OF THE MARRIAGE RELATIONSHIP
5 Different ways
These are litigated in State Supreme Court
- Declaration of Nullity
- is used when one party lacked capacity to marry and that capacity problem renders the marriage void.
- VOID – means to married, there is no marriage, you do not have to court its optional.
- might do it for the clarity of record OR
- if you need to have collateral issues resolved by judge e.g. car, children, house etc
- Nullity grounds
- Bigamy – you have to be single to have capacity to marry, second marriage is void.
- Incest – (It’s a crime, punishable up to 6 months imprisonment) can’t be too closely related to your spouse. E.g. including can’t marry one generation up or down
NOTE – NY legal to marry your 1st cousins.
NOTE – If you are related by marriage not by blood, you are permitted to marry e.g. step sister & step brother can marry.
- Second Ground – Annulment
- when there is a capacity issue that makes your marriage voidable. This requires the judge to grand the annulment before the marriage is voidable.
- the grounds are waivable if the parties continue to cohabit after learning of the problem, or the problem does not exist anymore.
- a. Age – one of the parties were too young (NY MUST BE 18), over 16 but under 18 with a consent of both of your parents. 14-16, requires consent of both parents and a judge. Under 14 – no lawful way.
- The annulment is not automatic, it’s in the discretion of the court, after 18 you carry on cohabiting you waive the right to annulment.
- Mental Incapacity – at the time of the marriage, grounds for annulment 2 type:
- a mental illness b. developed mental disability
Either type counts as mental incapacity. That lawsuit is usually persisted by the guardian.
- the ground is waived if that person cohabits after it cures and does not have the illness anymore.
- Duress – waivable if you carry on cohabiting after the threat has been taken away from you.
- Fraud – Misrepresentation of concealment info, prior to the marriage that goes to a vital or essential aspect of the marriage (materiality aspect must be important). Decided case by case:
- Religion – lying about that is cruel so this gives grounds for annulment.
- waivable if after the reveal, the other spouse continues to cohabit.
- Lying about procreation or sex (the ability not to have sex, keeping it a secret)
- this includes – if before marriage a women is pregnant, and she lies about the father, saying that the spouse is the father.
- regarding sex – if she was a prostitute and does not say about it before marriage.
- misrepresentation and concealment – concerning: money, property, social statutes NOT a ground for annulment.
NOTE – 3 year SOL after that bared to bring an annulment case.
- Physical incapacity – incurable physical condition that prevents safe and normal sexual intercourse
- nothing to do with precreation, this is about performing the act
- this ground presumes that they have sex after marriage, otherwise they would have known and cancelled it off.
iii. It has to be incurable
- Being tender and loving not enough
- All waivable if you find out of the problem and you OK with it. MUST be bought to court within 5 YEARS from the date of marriage. (No Jury Trial for this).
- 5 Years of Incurable Insanity – arising after the marriage
- Procedural – must have 3 court appointed physicians who agree on the diagnostic.
NOTE – NO SOL
- Third – A legal Separation
- Allows to live separate and apart, away from spouse without any physical relationship, with court permission. Court will adjudicate economic& child custody issues, if there are any, but it will leave the marriage intact.
- Reasons for this
- practical e.g. health insurance through your husband work or tax reasons, pension et=entitlement etc.
- Religious or philosophical – don’t believe in divorce.
NOTE – not tried by jury. Can be temporary or permanent depend on the fats the parties reveal.
GROUNDS 5 – For Legal Seperation
- Cruel and Inhuman treatment-physical or mental abuse
- must in danger the well-being of the innocent spouse, and render it unsafe or improper.
- single episode of domestic violence is enough for the grounds
- Mental cruelty – single episode is enough
NOTE – NY has a domestic violence law, it allows anyone in the intimate relationship to petition to the Family court for a Protective order, if they become a victim of a domestic violence.
NOTE – If married can get separation or divorce and protective order under the domestic violence.
- Abandonment – 4 Requirements
- D spouse must voluntarily depart from the marriage
- without the consent of the other spouse
- No intent to return
Note – I f you leave the home to escape domestic violence that is justifiable
NOTE – no specific period that is required for a legal separation, but abandonment of a marriage not the house. E.g. you can abandon the marriage by not having sex, or moving into the guestroom (constructive abandonment)
NOTE – No SOL on this
- includes an act of sex, can be other sexual intimates
- with another person
- another person who is not your spouse
- Recrimination – P is guilty as well
- Condonation – is a waiver, after learning of the adultery you forgive your spouse and carry on cohabiting.
- Conalments (NOT SURE HOW TO SPELL THIS WORD) - you make a plan for your spouse to have adultery e.g. hiring a prostitute to seduce your spouse
NOTE – 5 year SOL
NOTE – Proof of adultery has to come through 3rd party testimony, for circumstantial evidence, cannot be your own testimony (must be corroborated)
- 3 years of consecutive imprisonment
- Failure to support (financial provisions to support each other)
- Forth – Divorce (most common)
6 Grounds including, No Fault Divorce Ground
NOTE - First 4 Grounds are Identical to the first 4 available for LEGAL SEPERATION.
- Cruel & Inhuman Treatment
- 3 years of consecutive imprisonment
- Conversion Divorce – 2 step process (separate & than after convert the separation into divorce.
- Litigate separation through lawsuit or negotiate a separation agreement
- Go back to court, after 1 year living apart to get a divorce.
NOTE – Separation agreement must be in writing, acknowledged (which means notarised, voluntary (no duress) must be filed with the court)
NOTE – If you rescind the agreement by ripping it up or write a new document, to say this, or you cohabit with intent to get back together. In these situations you have to write a new separation agreement and then have to wait for 1 year. Just sex, does not rescind the agreement.
NOTE – Cohabitation after a Court order separation, does not affect your entitlement to conversion divorce.
NOTE – BUT material breach of the separation agreement will affect the entitlement of conversion divorce.
- NO FAULT-
- Irretrievable breakdown of the marriage, lasting for a period of at least 6month.
- To prove this, party must testify under an oath.
NOTE – Unclear if lived apart or together, if they have a trial or not, if the other party can come back and say it’s not true.
NOTE – Divorce will not be entered until all collateral; issues are resolved by agreement or adjudicated, e.g. fighting about, kids, property, alimony etc.
- A Dissolution
- Your spouse disappeared, varnished.
- Requires proof without, after 5 years judicially they tender his dead. However:
- Diligent Search
- Publish your request for your missing spouse to come home in an English newspaper for 3 consecutive weeks,
iii. P must have lived in NY for 1 year at least or NY was the matrimonial domicile.
NOTE – No collateral issues
NOTE FOR ALL MATRIMONIAL CASES – A minute a matrimonial cause is filled, certain automatic orders kick in:
- Forbids the sale of assets, conceal assets, change insurance coverage, unusual loans, basically it freezes the situation.
- In ALL matrimonial cases EXCEPT DISSOLUTION cases, parties obliged to full financial disclosure of their assets and file a tax returns with the court.
Alimony – NY calls it Maintenance
1.Temporary Maintenance – whiles the case is on, court has power to do this.
- Special Rules for Calculations Formula – to get a presumptive award, court can change (up or down) it depending on its discretion and on the applicable equitable factors.
- Post Judgement Maintenance – awarded when showing a need by the spouse (19 factors are listed and any other factors that are just and proper)
- Permissible to consider marital fault (abandonment, adultery etc)
- Age & health
- Earning capacity (job skills, education, away from work place)
- what kind of property they will be walking away with (this is a form of support)
- If one party a custodial to minor, or other elderly people.
- Council fees the less moneyed spouse usually rebuttable to this.
NOTE – Maintenance is continues process, therefore modification, termination, enforcement are issues that can arise.
- If you are receiving in or paying it, you can ask the court (if there is evidence) to change it, in substantial circumstances.
- can’t modify past payments – so have to ask court promptly
- In courts discretion to agree to modification
NOTE - Separation Agreement – to modify requires extreme hardship showing, higher threshold.
- Either party can contract around the termination in a separation agreement i.e. adding a term to say that the estate will not pay: on remarriage or on re cohabiting with someone else.
- Disobedience of Court Order:
- Seize property e.g. take over bank account
- Wage reduction order
- Take away your driving licence
- Take away your professional licence
- Deny a recreational licence (cant hunt or fish)
- Send to jail.
- Property Division
NY SYSTEM – Equitable Distribution – 2 step process
- Categorise or classify the assets
- Distribute, divide up the assets.
1A. Assets 3 categories
- Husbands separate property
- Wives separate property
iii. Marital Assets
NOTE – Assets include all of personal property, all furniture, real estate, financial estate.
BAR EXAM TIP – on exam they will have 3 or 4 assets
- 5 things to remember regarding Separate Property
- Any asset awarded prior to the marriage
- Any bequest or gift received after the marriage by one spouse in his/her name
iii. Any property the spouse agreed to treat as separate property
- Personal injury compensation, at least the pain and suffering component.
- Appreciation in value – Categories 1-4 unless the appreciation is due to the other spouseless efforts.
NOTE – Studying at home and managing at home and letting the other one to run the business, would still count as acting effort.
- EVERYTHING ELSE is matrimonial assets, doesn’t matter who earns the money or the name on the asset.
NOTE – Vested Intangibles, stock option, pension rights, they come into possession during marriage they go into the Matrimonial Value. The value of getting a professional licence goes into the M column.
NOTE – Avoid double counting, in maintenance and property division.
- Equitable factors – property is divided upon from M column
NOTE – NOT supposed to consider marital fault, unless shocks the conscious, truly exceptional, all discretional.
Can be taken into account:
- The loss of health insurance upon dissolution
- Loss of inheritance rights on dissolution
iii. Custodial need of a child to occupy the marital home.
NOTE – Cash award in NY called a distributary award, is once and NOT modifiable.
- Terminating parental rights
- Making a child adoptable - this is called T.P.R. in family court.
- Indigent parent entitled to a free counsel.
- The case against the parent must be proved by clear and convincing evidence.
- 5 Grounds
- Abandonment – failure to visit or communicate with your child at least 6 months.
- Permanent Neglect – already in sate care, at least a year & failed to maintain substantial conflict or a plan for the child.
iii. Abuse – physical or sexual
- Mental Illness or disability – which makes it impossible to parent.
- Murdering a sibling
NOTE – NY does not allow open adoption, it is up to the adopted parents.
- A single person can adopt
- Two married adults
- Two unmarried cohabitants
- A married minor can adopt his spouse’s children
- A married but separated adult can adopt singly.
NOTE – Who can be adopted? Anyone, a child or adult. Got to establish a parent child relationship.
- Steps to Adoption
- Pair up with adoption Agency
- Get all necessary consents or demonstrate that they are not required in that scenario.
- consent from biological parents if the adoptee is a minor
- if the adoptee is over 14 years old, then you need their consent
iii. if someone else has legal custody, then you need their consent
- State has custody – then you need their consent.
- Investigation of the prospective parents – home study, background etc
- Trial placements – 3 months in the case of a minor
- Judicial proceedings – final establishment or a full parent child relationship.
NOTE – Religious matching were possible.
Support and Custody
- Biological parents have to support their children:
- up to 21 years old OR
- through college if parents have the finances & the child has the academic ability to go to college.
- A support order only is entered (in the vast majority cases) against a parent and child living separate. That is likely when court gets involved (non-custodial parent)
- After the divorce ( the losing party, is a non-custodial)
- Non marital child after a filiation proceeding.
NOTE – Entitled to modification, always if parent income moved up or down by 15% or If 3 years have passed.
NOTE – 15% of wages should go towards the support of a child (combined parental income, for 2 children is 25%). The non-custodial parent pays that percentage of his income. Parents can agree to alternative numbers in a contract, must be informed of the guide laws and this agreement is entitled to court modification.
NOTE – Continues obligation, not a one off.
NOTE - If you do not pay child support, court can use the same enforcement as in maintenance.
- Indigent Parent
- No entitlement to appointed counsel, if there are substitute procedural safeguards.
- In forming the ability to pay – a form against his finances, give him the opportunity to explain his finances and court findings.
- Determination is made through the best interest of the child standard.
- Key facts (not conclusive)
- Health of all parties considered, physical and mental
- Education & finances of the parent
iii. History of domestic violence
- Criminal activity
- New companion/living partner – what kind of person is that
- Any placement that will allow all siblings to stay together.
vii. Joint custody - co-operation and do parent get along, and do they live together.
- Non-parent versus a Parent (e.g. single parent (trouble person) vs. the other family member e.g. aunt
- Presumption is a unification with the parent.
- Non-parent has to show non-fitness or extraordinary circumstances.
- Relocation of the custodial parent. Requirements:
- To secure court permission, before you relocate AND
- Must show that it is in the child’s best interest.
- Non-custodial parents almost always gets visitation.
- Grandparents petition for visitation – will be denied, because it is a parents duel process rights to deny visitation.
- However if grandparents can show special circumstances then they can be granted visitation.
Conflict of Law Material
- Recognition of events that take place in other jurisdiction
- Valid marriage – NY recognises it unless it is under a prohibited policy in NY (e.g. having 4 spouses, marrying sister)
- Divorce – NY gives full faith and credit to other states.
NOTE – Res judicata prevents a plaintiff from suing on a claim that already has been decided and also prevents a defendant from raising any new defences.
- Ex-parte (only one party participated)
- presumptively valid
- But can be collaterally attacked by showing the spouse was not a domiciliary.
- Divorce in foreign country – honoured in NY if both parties agreed.
- Ex-parte foreign divorce – not honoured in NY State.
- Children – out of state support
- unify statute, once an initial support order has been granted/entered, all other states must recognise that order.
- The initial state has continues, exclusive jurisdiction, until one parent or child still lives there (uniform interstate family support act)
- Custody works the same way – if it’s the home state of the child, lived there for 6 months before it is granted (uniform child custody jurisdiction and enforcement act)
NOTE – It is a felony to remove a child in a violation order of the State of NY.