January 23, 2014

questions will often be to evaluate ruling list factors o which are usually not exhaustive

matters that precede marriage not heavily tested agreements between couples o unmarried couples NY will enforce express agreement between unmarried cohabitants agreement r/e what happens if they split provided that no part of consideration for contract is sex (can have consideration for other things, e.g., household maintenance) Buying in bulk is still unenforceable. NY wont imply contract between unmarried couples

o premarital agreements can address any topic most address economic issues in case marriage fails, but dont have to do that typical fact pattern: couple makes prenup, gets married, now getting divorced, one partner wants agreement set aside get more $ challenger usually spouse) formalities: in writing
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economically weaker (less moneyed

 signed by both acknowledged fairness must have been freely made no duress provisions must have been fair and reasonable at time agreement made not unconscionable at time of divorce children of unmarried couples o child born to unmarried woman: nonmarital child o have some rights as marital children for nearly every purpose under law NYS law constitutional doctrine important: economic support for parents

o issue: identification of father if parents in monogamous relationship, usually not issue if parents not in exclusive relationship, may want to litigate to establish identity of father: filiation proceeding filed in Family Court can be filed by mother child in own name by legal guardian father (to establish status) must be filed before child turns 21 need clear and convincing evidence to prove paternity DNA typing is required and usually what finding based on
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 if greater than 95% probability that defendant is father, presumption that he is burden shifts to him to rebut presumption basically only 2 ways to do that biologically incapable of fathering children no contact with mother at time of conception if mother claims sexual relationship with father, no corroboration needed if father claims mother had sexual contact with other people, corroboration needed paternity by estoppel: if man holds himself out as father of a child and child relies on that, estopped from denying paternity mother can be estopped from claiming paternity of another man if she lives with somebody else and has listed that person as father of child process of getting married: to get married in NY, must have ceremonial marriage 2 requirements o license purpose: ascertain that both people have capacity to marry of age mentally sound can now be of the same sex (as of July 24) o ceremony requirements officiant: somebody to conduct ceremony can be member of clergy civil officer empowered to administer oath
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 judge mayor governor clerk of court captain of seagoing vessel witness only need 1 though most couples have 2 exchange of promises solemn declaration before officiant and witness but no required language solemn just means that youre serious about the declaration NY doesnt recognize common-law marriage though recognizes CL marriages from states that do allow them

termination of marriage five different matrimonial causes of action o all brought in state Supreme Court not Family Court

o declaration of nullity used in situation where capacity problem prior to marriage problem so serious that it made marriage legally void dont actually need action because marriage already void just getting void of marriage on record though may be required for adjudication of collateral issues grounds
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 dont need to memorize bigamy must be single in order to get married incest in order to have capacity to marry, cant be too closely related to other person not allowed ancestors of any generation parents, grandparents, etc. descendants of any generation siblings whether whole or half aunt/uncle niece/nephew OK: first cousins majority rule nationally people who arent blood relatives but who may have close relationship of affinity e.g., stepsibling can also be a criminal violation o annulment appropriate remedy when one party lacked capacity to marry and problem made marriage voidable not void grounds can be waived grounds non-age: one party was too young requirements
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 anybody can marry at 18 can get married at 16/17 if both parents consent can get married at 14/15 with consent of parents judge ground waived if continue to cohabit after age 18 cohabit: living together and having sexual relations judge has discretion to grant or deny annulment even if underage party mental incapacity at time of marriage have to be of sound mind in order to married disability can be developmental psychiatric disorder litigation would have to be brought by guardian/committee because same capacity that makes it illegal to get married also makes it illegal to bring litigation on own behalf common fact pattern: elderly person with Alzheimers, golddigger waivable only if incapacitated party gains capacity couple continues to cohabit duress if get married under threat of physical force, have grounds for annulment waivable if continue to cohabit after threat of force removed lose ground fraud most heavily tested of annulment grounds
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 definition: misrepresentation or concealment of information prior to marriage by one party that goes to essential aspect of marriage and that is calculated to deceive reasonable person whats essential aspect? things that count religion waivable possibly also grounds if lie about how devout you are being a giant Nazi sex possibly lying about sexual history? would have to be very significant alteration of facts no bright-line test cases often involve woman not revealing that she was prostitute in the past lying about sexual proclivities/expectations also would have to be significant waivable procreation: if biologically incapable of having kids, you conceal it, and not otherwise obvious, grounds for annulment obviously this doesnt apply to very elderly people, for example if carrier of disorder that would make it hard to have kids
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 affect children if woman pregnant and knows that father isnt fianc but tells fianc that it is, grounds for annulment lying about money/property/social status not grounds law takes position that people do not marry to improve social/economic circumstances physical incapacity aka you cant have sexual relations unlikely to show up on exam only likely to be issue if couple has decided to refrain from sex until wedding must be incurable condition has nothing to do with ability to procreate copulation, not procreation only ground for which no jury trial must be brought within five years of marriage waivable a little ambiguous because usually cohabiting means sexual relations, but basically if spouse is OK with it, can waive 5 years incurable insanity manifests after marriage need 3 court-appointed psychiatrists to agree on diagnosis o suit seeking legal separation legal separation doesnt terminate marriage function of legal separation legal permission to live separate and apart
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 not cohabit adjudicate other issues (support, etc.) why do this rather than divorce? pragmatic reasons health insurance, pension benefits, etc. religious/philosophical reasons no jury trial can be temporary or permanent must allege grounds (same as for divorce) cruel and inhuman treatment physical cruelty (i.e., domestic violence) abuse that dangers well-being of spouse renders it unsafe/improper for parties to continue to cohabit doesnt necessarily have to be continuous course of conduct mental cruelty usually does require continuous conduct pretty open-ended verbal abuse emotional coldness/distance refusal of sexual relations complete neglect of personal hygiene almost anything else a lot of discretion abandonment usually 4 factors voluntary departure from one spouse by other (i.e., military orders dont count)
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 no consent from other spouse without justification no intent to return if no declaration, then infer circumstantially can use length of absence though no bright-line can be constructive leaving marriage in emotional/psychological way even if no physical departure can be something like refusal to have sex (may overlap with cruel/inhuman treatment) but not having sex because of medical issues not constructive abandonment no statute of limitations abandonment continuing situation by definition adultery act of sex or deviant sex voluntarily performed with another person not ones spouse while married deviant sex = forms of sex that arent PIV sexual assault not adultery four defenses: recently tested recrimination aka unclean hands usually means plaintiff guilty of adultery as well divorce is equitable remedy, so plaintiff spouse must be free from wrongdoing condonation form of waiver

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 after plaintiff spouse learns of adultery, continues to freely cohabit with defendant spouse connivance analogous to entrapment plaintiff lured defendant into committing adultery procured adultery statute of limitations: 5 years from discovery of adultery evidentiary issues proof of actual act of adultery cant come from testimony of plaintiff spouse even if she saw it in flagrante or whatever can use third-party testimony can use circumstantial evidence opportunity: defendant spouse and third party alone in circumstances where feasible to be sexually intimate disposition: usually exchange of romantically oriented correspondence gifts 3 years imprisonment beginning after marriage can seek upon imposition of sentence failure to provide economic support basically an action for support, because remedy sought includes legal separation with order to pay monetary support o divorce complaint most commonly litigated
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6 grounds 14: same as grounds for legal separation cruel/inhuman treatment abandonment small difference: for divorce, abandonment must last full year adultery 3-year imprisonment failure to support not grounds for divorce conversion divorce: couple must first separate can be as a result of litigation (legal separation) mutual agreement embodied in separation agreement document must be valid: more or less same requirements as prenup signed, acknowledged writing must be freely made (no duress) must be filed at some point during separation rescind agreement if cohabit with intent to reconcile even brief reconciliation that doesnt work out will rescind sex without intent to reconcile doesnt rescind agreement (you can hook up) only applies to contractual separation; if judicial separation, can boink all you want

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 if material breach of terms of agreement, cant use as predicate for divorce must live separate and apart for 1 year after separation, couple can go to court and file to convert to divorce how different from no fault: either one party had to prove fault both parties had to agree use will probably decrease now that theres no-fault NY adopted no-fault divorce last year ripe for testing esp. since not on most recent exam aka irretrievable breakdown of marriage one party must swear under oath that marriage irretrievably broken for 6 months dont know you whether need some kind of proof so far only 1 point of law, and its at trial court level: statement incontrovertible divorce wont be entered until collateral issues resolved either by agreement adjudication collateral issues include support property division child custody o dissolution procedure not often used use it when spouse has disappeared
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 requires proof that spouse missing without any tidings for 5 years basically a determination of presumed death requirements must provide evidence that made diligent search publish request that spouse return for 3 consecutive weeks in English-language newspaper residency: either plaintiff must live in NY for one year NY must have been matrimonial domicile at time of disappearance no collateral orders cant order missing spouse to pay support dont adjudicate property or custody because plaintiff spouse gets everything certain orders kick in when matrimonial action filed o basically an attempt to freeze everything in place forbid sale or movement/concealment of assets incurring unusual debts altering insurance policies o financial disclosure disclose net worth file tax return with court

economics of terminating marriage o heavily tested o maintenance (alimony) types while case pending, court can award temporary maintenance
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 goal: preserve status quo meet reasonable needs of applicant allow less affluent spouse to be able to separate and file for divorce statutory presumptive award based on variety of factors court can adjust up or down based on discretion equity postjudgment maintenance new statute instructs court to consider 19 factors in determining whether to award maintenance and how much examples health and age of spouses earning capacity of respective spouses custodianship of minor children not direct child support, but if caring for children affects ability to work respective amounts of property duration of marriage fault court may also consider additional factors if

just/equitable ongoing considerations modification: court-ordered: can be modified if substantial change in circumstances
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 prospective only cant obtain modification in past due payments creates incentive to ask for modification as soon as circumstances change if maintenance is under separation agreement, standard higher: must show extreme hardship termination court can set period of time any award terminates upon death of either party (payor or recipient) can be altered in separation agreement award terminates if recipient either remarries cohabits with another person enforcement methods attachment of wages seizure of assets revocation of license drivers license professional license recreational licenses jail contempt of court party who has to litigate for enforcement entitled to counsel fees o property division NY uses equitable distribution majority in US (some use community property)
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 2-step analysis categorize all assets couple owns separate property of each spouse assets acquired prior to marriage inheritance or gift received by one spouse in zir sole name during course of marriage property acquired after marriage but spouses agree to treat as separate personal injury compensation passive appreciation on items in above categories increase in value due to passage of time and market forces marital property: any other property acquired by either spouse during marriage up to moment of formal separation filing of divorce complaint (if no formal

separation) doesnt matter who earned money for asset whose name is on it whats marital property construed liberally: when in doubt, its marital all compensation intangible assets as long as vested appreciation on separate property attributable to active participation or effort treated as marital asset
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 work as homemaker/caregiver that allows other spouse to devote effort to asset is participation professional license/degree if obtained during marriage court calculates degree to which

license/degree will enhance earnings over course of holders life, then reduce that amount to present value (based on age and life expectancy) holder of degree charged with that amount of marital property if license treated as marital asset and affects property distribution, court must keep that in mind when calculating maintenance so as not to charge holder spouse twice on exam: almost always 3 assets and its obvious what belongs to whom look for separate property first divide marital assets usually done by percentage factors mostly echo those for maintenance court may not take fault into account unless behavior amounted to egregious conduct shocks the conscience: if it just overlaps with grounds for fault-based divorce, doesnt count

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 example: one spouse violently attacked other in presence of minor children spouse who is going to be custodian of children will often ask for marital home whether one spouse will lose health insurance loss of inheritance rights court can order assets distributed in kind one spouse gets marital home, other spouse gets BMW, etc. distributive award: one spouse has to make payment to other o rebuttable presumption that less-moneyed spouse in matrimonial case gets counsel fees

children heavily tested termination of parental rights o grounds abandonment failure to visit or failure to communicate with kid for 6 months must manifest lack of interest in parental rights permanent neglect child currently in care of agency usually means living with foster parents parent has failed for 1 year to maintain contact with child or plan for childs future although physical and financially able to do so despite agencys efforts
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abuse physical sexual

mental illness or other developmental disability that makes it impossible for parent to care for child

parent murders sibling of child in question

o procedure issues adjudicated in Family Court parent entitled to court-appointed counsel

adoptions o people eligible to adopt married couple acting jointly 2 unmarried adults in intimate relationship acting together single adult minor who is married can adopt zir spouses children

o anybody can be adopted adult or child as long as all necessary consents in place if adoptee under age 18: both biological parents unless parental rights terminated surrendered (i.e., putting child up for adoption) if adoptee over 14 but under 18: also need adoptees consent if adoptee an adult, need adoptees consent if adoptee in formal custody of another person, need that persons consent o investigation of prospective adoptive parents background checks
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interviews home visitation

o NY has policy of trying to match religion of birth parents with adoptive parents of same religion o usually a trial period of 3 months where child lives with adoptive parents before finalization after that: full parent/child relationship

child support: parents (biological and adoptive) owe duty of support to all children through age 21 o can be extended through completion of college education if court finds special circumstances usually means child has ability to complete college parent has ability to pay for college o generally, when child lives with parent, support obligations fulfilled via routine expenses (food, housing, etc.) o for noncustodial parents usually issues in 2 situations postdivorce father of nonmarital child court will usually look at child support guidelines apportion amounts between parents based on income guidelines can be modified/altered if judge finds reason to do parents enter into agreement but agreement must state that parents informed of child support guidelines subject to judicial oversight

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 will generally be given effect only if more generous than guidelines o ongoing obligation, so issues of modification possible if changed circumstances childs needs change in parents financial situation parents entitled to go to court for review every 3 years change in either parent's income of 15% termination death of child parent child turns 21 child graduates from college enforcement: pretty much the same as for alimony

custody: adjudication of custody matters is best interests of child o neither parent preferred over the other o no gender-matching o open-ended inquiry judge should look at absolutely everything that affects welfare of child examples health of parents physical mental financial situation of parents preferences of various parties including child if above 12ish
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 domestic violence history of substance abuse criminal activity of parents whether either parent has new SO and what kind of person they are if request for joint custody do parents get along? do parents live near each other? o judge allowed to examine child in camera outside presence of parties has to be on record, though

o custody disputes between parent and nonparent best-interests standard but presumption that child better off with parent nonparent only wins if either parent unfit extraordinary circumstances

conflict of laws issues

NY has domestic violence statute applies to any relationship o not just married partners expedited procedure designed to provide protection from danger

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