DOMESTIC RELATIONS LAW
A.BAR STRATEGY
1.1 ESSAY EXCLUSIVELY OR LARGELY DEVOTED TO DOM. RELS.
a.SOMETIMES COMBINED W/Ks.
2.MC Qs ON MINOR RULES.
3.DR LAW IS DATED (OLD).
I.STATUS IN MARITAL RELATIONSHIPS (CONSEQS. OF, CHANGES IN)
A.PRE-MARITAL AND EXTRA-MARITAL PARTNERS
1.RULES FOR AGMTS. THAT ROMANTICALLY INVOLVED, SINGLE PEOPLE CAN ENTER:
a.NY ENFORCES EXPRESS AGMTS. B/N UNMARRIED PARTIES NOTWITHSTANDING THAT PARTIES ARE IN ILLICIT RELAT.
(1)EXCEPTION: IF SOLE CONSID. UNDER EXPRESS AGMT. IS SEXUAL INTIMACY > NOT ENF.
(a)ie. If relat. agmt. is X will pay for Y's shelter if Y continues sleeping w/X > prostution.
b.NY DOES NOT RECOG. IMPLIED RELATIONSHIP UPON WHICH TO PREDICATE A FUTURE OBLIG. TO KEEP PAY ALIMONY.
2.PRE-NUPTIAL AGMTS.
a.DEF.EXPRESS Ks B/N UNMARRIED PEOPLE, ENTERED INTO IN CONTEMPLATION OF MARRIAGE (PARTIES ARE ENGAGED).
(1)THEY GENERALLY ADDRESS MATTERS RELATING TO MARITAL STATUS OR MARITAL DISSOLUTION.
b.CAN INC.:
(1)DIVISION OF RESPONSIBS. IN MARRIAGE.
(2)HOW PROP. WILL BE DIVIDED IF MARRIAGE FALLS APART.
c.2 QS:
(1)WHEN VALID?:
(a)MUST BE FREELY MADE.
(b)MUST BE IN WRITING (SOF).
i)Even part perform. will not let parties escape writing reqt.
a)ie. Div. of prop. in oral agmt. Marriage lasts 20 yrs (part peform) > NOT PRE-NUPTIAL AGMT.
(c)CANNOT AGREE ON DIVORCE.
(d)CANNOT UNCONSCIONABLY LIMIT SUPPORT.
i)STD.: If wealthier of the 2 spouse fixes amt. so low, that poorer of the two becomes public charge > INVALID.
(2)ENFORCEABLE?:
(a)YES, IF MARRIAGE OCCURS.
(b)NO, RESCINDED IF PARTIES DO NOT MARRY.
i)SUBSEQ. DIVORCE DOES NOT AFFECT VALIDITY.
B.UNMARRIED, "COHABITATING" (=SEXUALLY INTIMATE) PARTIES W/CHILDREN
1.TERMS FOR "CHILDREN BORN TO UNMARRIED PARENTS":
a.NEW LEGAL TERM: NON-MARITAL CHILDREN OR OUT-OF-WEDLOCK CHILDREN.
(1)Used to be "bastard" or "illegitimate child."
2."NON-MARITAL CHILD":
a.DEF.: CHILD CONCEIVED AND BORN TO PARENTS WHO NEVER MARRIED.
(1)IF CHILD BORN 4 MOS. AFTER WEDDING > MARITAL CHILD.
(2)IF CHILD BORN TO UNMARRIED WOMAN AND THEN SHE MARRIES BIOLOGICAL FATHER > MARITAL CHILD.
b.PROB. OF PROOF
(1)EASY TO KNOW WHO MOTHER IS.
(2)BUT: FILIATION PROCEEDING (PATERNITY SUIT): PROCEEDING TO DETERM. WHO FATHER OF CHILD IS.
(a)CHILD NEED NOT BOTHER IF male acknowledges the child.
(b)IF NO ACKNOWLEDGEMENT, BRING SUIT IN FAMILY CT.
(c)SUIT MUST BE BROUGHT ANY TIME BEFORE CHILD'S 21ST BIRTHDAY.
(d)SOMETIMES FATHER CAN BRING THE SUIT.
i)PURP.: ie. Child wins lottery and father wants intestate share of child (suppose child dies.).
ii)Must bring suit before child's 21st B-day > BUT if father paying support, extends the deadline.
(e)5 EVID. ISSUES:
i)B/P IS CLEAR AND CONVINCING EVID.
ii)BLOOD TEST EVID. ONLY ADMISSIBLE TO DISPROVE PATERNITY (OFFERED BY PUTATIVE FATHER).
iii)DNA (TISSUE/BLOOD) TESTING ADMISSIBLE EITHER WAY (BY CHILD OR FATHER).
iv)MOST TYPICAL EVID. IS MOTHER'S TESTIMONY OF FATHER'S SEXUAL ACCESS TO HER (ADMITTED W/O CORROBORATION).
v)BUT: D's (ALLEGED FATHER's) TESTIMONY OF SEXUAL ACCESS TO MOTHER BY OTHERS MUST BE CORROBORATED.
(f)CONSEQ. OF SUCCESS: IF D IS FOUND TO BE FATHER OF CHILD, CHILD IS NOW MARITAL CHILD:
i)Can get support from father, can inherit from him, worngful death claim if father run over, etc.
3.5 HEART BALM ACTIONS:C OF As B/N UNMARRIED PEOPLE (OR MEMBERS OF A MARRIAGE AND EXTRA-MARITAL PARTIES IN LOVE TRIANGLE) > **ALL HAVE BEEN ABOLISHED IN NY** (But tested on NY MCs)
a.BREACH OF PROMISE TO MARRY:
(1)Fiance sues you if you break off engagement.
b.SEDUCTION OF AN UNMARRIED FEMALE:
(1)Brought by daughter's parents b/c daughter is damaged goods.
c.ALIENATION OF AFFECTIONS:
(1)Somone turns your spouse against you. ie. Family member or outsider telling you to divorce your spouse or how bad spouse is > your spouse can bring action against homewrecker.
d.CRIMINAL CONVERSATION (CIVIL ACTION FOR ADULTERY)
(1)It is neither criminal nor conversation.
(2)Innocent spouse sues the "other" person (person that spouse was sleeping with).
e.JACTITATION OF MARRIAGE:
(1)Holding yourself out in public as being married to third party (not his wife > mocking the marital relat.)
C.VALID CAUSES OF ACTION
1.CAN BE SUED ON FRAUD CLAIM IF USE FRAUD OR DECEIT TO ENTICE SOMEONE INTO COHABITATION (emotional damages)
a.ie. Fake a wedding to get sex.
2.GIFTS GIVEN IN CONTEMPLATION OF MARRIAGE:
a.They can be recovered back if the marriage falls through.
b.Nature of gift must show that it was conditional on marriage. ie. engagement ring.
(1)Does not include VCR given for Christmas or B-day.
II.INCIDENTS AND CONSEQUENCES OF BEING MARRIED
A.REQTS. FOR GETTING MARRIED: (4 REQTS.)
1.MUST HAVE MARITAL CAPACITY:
a.2 CATEGORIES OF 5 RULES
(a)1ST SET OF 2 RENDERS MARRIAGE COMPLETELY VOID; 2ND SET OF 3 RENDERS MARRIAGE VOIDABLE.
(b)ALSO ARE GROUNDS FOR GETTING OUT OF THE MARRIAGE IF DISCOVER THE INCAPACITY LATER.
(1)INCEST > VOID: PARTIES WHO ARE TOO CLOSELY RELATED TO EACH OTHER LACK THE CAPACITY TO MARRY EACH OTHER > VOID.
(a)BLOOD RELATS. COVERED. (FORBIDDEN RELATS.)
i)All ancestors, descendants, and lineals to the first degree.
a)ie. MAN MAY NOT MARRY: mother, grandmother, great-grandmother, daughter, grand daughter, etc., sister to first degree (aunt, niece).
(b)PROHIBITION APPLIES TO WHOLE & HALF-SIBLINGS BUT NOT STEP (WHOLE OR HALF BLOOD),
i)CAN MARRY STEP-SIBLING.
(c)FIRST COUSINS CAN MARRY IN NY.
(2)BIGAMY > VOID: CANNOT MARRY MORE THAN ONCE AT THE SAME TIME > VOID.
(a)FP: Dave marries Alice, and then marries Barbara > MARRIAGE TO BARBARA IS VOID.
(3)BEING UNDER AGE > VOIDABLE:
(a)MUST BE 18 TO MARRY.
i)BUT: IF OVER 16 AND HAVE CONSENT OF ONE PARENT, THEN CAN MARRY.
ii)IF OVER 14 BUT UNDER 16 > CONSENT OF ONE PARENT PLUS JUDGE.
iii)UNDER 14 IS ABSOLUTELY FORBIDDEN.
(4)LACK OF MENTAL CAPACITY > VOIDABLE: (3 GROUNDS IN 1)
(a)INSANITY/RETARDATION: NO CAPACITY.
(b)DURESS: NO CAPACITY IF FORCED TO ENTER MARRIAGE UNDER COERCION > CAN BE WAIVED.
i)ie. forced to marry someone you made pregnant by threat of violence (SHOTGUN WEDDING)
(c)FRAUD: IF LIE TO SOMEONE TO GET PERSON TO MARRY.
i)FRAUD MUST GO TO A VITAL ELEMENT OF THE MARRIAGE.
a)FP: After marriage, W discovers H is Nazi. He puts up swastikas. She cannot have Jewish visitors > FRAUD > MARRIAGE VOIDABLE.
ii)3 CATEGORIES OF FRAUD FPs: MISREP. CONCERNING...
a)RELIGION (goes to central element of marriage) (cannot conceal or misrep.)
b)SEXUAL PROCLIVITY, PROPENSITY FOR PERVERSITY, WILLINGNESS TO HAVE CHILDREN.
c)BUT NOT: FRAUD RE. WEALTH, MONEY, FINANCES. ie. pretends to be rich.
(5)LACK OF PHYSICAL CAPACITY > VOIDABLE
(a)DEF.: AN INCURABLE PHYSICAL COND. THAT PREVENTS SAFE SEXUAL INTERCOURSE IN THE NORMAL FASHION
i)MUST BE PHYSICAL (NOT MENTAL INCAPACITY).
ii)MUST BE INCURABLE (ie. AIDS, herpes)
iii)REFERS TO INABIL. TO HAVE CONVENTIONAL, SEXUAL INTERCOURSE (NOT ABIL. TO SEXUALLY GRATIFY, BUT WHETHER CAN DO THE SEXUAL ACT)
2.LICENSE: BUT FAILURE TO GET ONE DOES NOT INVALIDATE THE MARRIAGE.
3.CEREMONY: SOLEMN DECLARATION BEFORE AN OFFICIANT.
a.DEF. OF "OFFICIANT": ANYONE WHO LOOKS IMP. (ANY DENOMINATION, LEADER OF CULTURAL SOCIETIES, SHIP CAPTAINS, MAYORS, ETC.)
b.NO FORMAL FORM OF CEREMONY REQD. ie. Can be scuba marriage.
c.DEF. OF "SOLEMN": Must be serious in intent to marry.
4.BOTH PARTIES MUST BE PRESENT > NO PROXIES.
a.BUT:IF PARTIES MUST BE IN SEPARATE PLACES > CAN ENTER CONTRACTUAL MARRIAGE.
(1)REQT.:SOLEMNIZATION MUST BE BEFORE A JUDGE, W/A WITNESS IN EACH PLACE ACKNOWLEDGING SIGNATURE OF K > SPOUSE SENDS K TO OTHER SPOUSE WHO SIGNS BEFORE JUDGE AND WITNESS..
B.NY DOES RECOG. MARRIAGES FROM OTHER JURIS. UNLESS TO DO SO WOULD VIOL. A FUNDAMENTAL NY STATE POLICY: ie. C.L marriage (C.L. relat. as marriage).
C.CONSEQUENCES OF BEING MARRIED
1.DUTY OF RECIPROCAL SUPPORT (FAIR AND REASON. ECON. SUPPORT): owed by parties to each other.
a.BASED ON ECON. MEANS OF THE 2 SPOUSES.
(1)IF LITIGATED, ONLY CONSIDER THE MEANS OF THE PAYING SPOUSE (THE RICHER SPOUSE).
(a)NEED OF RECIP. IRRELEVANT UNLESS PERSON IN DANGER OF BECOMING A PUBLIC CHARGE.
b.EFFECT OF FAILURE TO PROVIDE SUPPORT:
(1)IF NO SUPPORT AT ALL > GO TO FAMILY CT. AND SEEK ORDER TO ENFORCE SUPPORT RT.
(2)IF SOME SUPPORT BUT AMT. IS INADEQ. > CANNOT GET FAMILY CT. TO INCREASE THE AMT. TO BE PAID.
(a)FP: W given $20/day allowance > NO CT. WILL INCREASE IT.
(b)INSTEAD: MUST SUE FOR A SEPARATION ON GROUND OF INADEQ. MEANS OF SUPPORT > PART OF SEPARATION DECREE WILL INC. INCREASED SUPPORT.
2.MARRIED PERSONS HAVE SAME RTS. AND RESPONSIBS. AS STRANGERS
a.EACH CAN OWN HIS OR HER OWN PROP.
b.CAN K W/EACH OTHER.
c.CAN LIVE IN SEP. DOMICILES.
d.EACH LIAB. FOR OWN DEBTS.
e.CAN COMMIT TORTS AGAINST EACH OTHER.
III.TERMINATION OF MARRIAGE
A.5 MATRIMONIAL ACTIONS IN NY:
1.DECLARATION OF NULLITY
a.DEF.: WAY TO GET PIECE OF PAPER CORROBORATING FACT THAT SPOUSES IN VOID RELAT.
(1)ONLY APPLIES TO INCEST AND BIGAMY.
b.REASONS TO GET IT:
(1)Easier if have plain, paper trail (ie. credit rating, insur. and tax situation > easier to prove not married).
(2)Easier to determ. status of the child.
c.EITHER PARTY MAY BRING THE C OF A.
(1)If bigamy, bigamous or guilty spouse can bring suit, too.
2.ANNULMENT (picks up on the remaining 3 capacity probs.)
a.DEF.: WAY OF TERMINATING THE MARRIAGE THAT IS VOIDABLE B/C OF UNDER AGE, LACK OF MENTAL CAPACITY (INSANITY, FRAUD, DURESS).
(1)5 YRS. OF INCURABLE INSANITY IS GROUNDS FOR ANNULMENT.
b.3 FACTORS:
(1)ACTION CAN BE BROUGHT BY EITHER PARTY.
(a)IF INCAPACITATED, CAN BE BROUGHT BY GUARDIAN, COMM., OR BEST FRIEND.
(2)CANNOT COHABIT AFTER LEARNING OF PROB. OR DEFECT, OR AFTER INCAPACITY IS OVER > IF DO, THE COHAB. BECOMES DEFENSE TO ANNULMENT ACTION (ie. If change mind about continuing the cohab. and bring annulment action).
(a)MOST. IMP. FOR ACTIONS OF FRAUD OR DURESS.
(3)VARIOUS GROUNDS MUST BE CORROBORATED.
(a)GROUNDS OF UNDERAGE > ANNULMENT ACTION IS DISCRETIONARY (CT. CAN DENY THE ANNULMENT).
i)SOL IS 6 YRS. AFTER MARRIAGE.
ii)COHAB. AFTER REACHING AGE OF MAJORITY IS COMPLETE DEFENSE. ie. 15 yr.-old kid can get annulment (discretionary). Can bring action 4 yrs. later, but if have continued to cohabitate after 18 > complete defense.
(b)GROUNDS OF MENTAL INCAPACITY:
i)SOL IS 6 YRS.
ii)BUT IF FRAUD CASE > SOL IS 3 YRS. AFTER DISCOVERY OR 6 YRS., WHICHEVER IS EARLIER.
(c)GROUNDS OF PHYSICAL INCAPACITY:
i)SOL IS 5 YRS.
(d)GROUNDS OF INCURABLE INSANITY
i)NO SOL B/C IT IS CONTINUING COND.
3.SEPARATION AND DIVORCE
a.ONLY DIFF. IN CONSEQ.
b.CAN USE SAME PREDICATE TO GET INTO CT.
c.SEPARATION DOES NOT TERMINATE MARRIAGE: PARTIES GOING SEPARATE WAY BUT KEEPING MARRIAGE INTACT > WHY DO THIS?
(1)Rel. belief that divorce is not permissible.
(2)Imp. for one party to maintain marital relat. b/c of econ. reasons: taxes, insur., EE benefit plans.
d.NO JURY TRIAL IN SEP., BUT AVAIL. IN DIVORCE.
e.4 COMMON GROUNDS FOR SEP. AND DIVORCE:
(1)CRUEL AND INHUMAN TREATMENT:
(a)DEF.:PHYS. OR MENTAL ABUSE THAT ENDANGERS THE WELL-BEING OF A SPOUSE.
(b)SUBJECTIVE STD. (state in essay)
i)TEST: Not whether abusive or diturbing to ord. person, but whether THIS INDIV. can handle waht is going on.
(c)PHYS. ABUSE: SINGLE EPISODE (IF SERIOUS) IS SUFF.
(d)PSCHOLOGICAL/MENTAL ABUSE: MUST BE ONGOING (SINGLE NOT ENOUGH) > INC.:
i)Humilation of spouse via verbal abuse (vulgarity, vicuperation) esp. in public.
ii)Sexual degradation: one spouse makes other spouse grovel (treats like dog)
iii)Grotesque failure to observe physical hygiene.
(e)COHABITATION AFTER ABUSE IS NOT ABSOLUTE DEFENSE (JUST A FACTOR).
i)ie. during sequences of peace in cycle of viol.
(2)ABANDONMENT:
(a)ANY PERIOD NO MATTER HOW BRIEF IS SUFF. GROUND FOR SEPARATION SUIT.
i)BUT FOR DIVORCE: MUST SHOW FULL YEAR ABANDONMENT.
(b)DEF.:ACTUAL OR CONSTRUCTIVE DEPARTURE W/O JUSTIF. AND W/O INTENT TO RETURN.
i)ACTUAL DEPARTURE: Physically walking out on spouse.
ii)CONSTRUCTIVE DEPARTURE: Persistent refusal to have sex w/spouse; persistent failure to communicate.
(c)NO SOL B/C BY DEF. IT IS CONTINUING SITUATION.
(3)ADULTERY:
(a)DEF.: AN ACT OF SEX OR DEVIANT SEX W/ANOTHER PERSON WHO IS NOT YOUR SPOUSE, DURING MARRIAGE.
(b)APPLIES ONLY TO EXTRA-MARITAL ACTIVITY W/ANOTHER PERSON (NOT ANIMALS OR INANIMATE OBJECT).
(c)"DEVIANT SEXUAL ACTIVITY": Irreg. positions or pracs.
(d)4 DEFENSES:
i)RECRIMINATION: like equit. defense of dirty hands > D shows that P spouse also had adulterous relat.
ii)CONDONATION: form of waiver: after learn of adultery, innocent spouse continue cohab.
iii)CONNIVANCE: form of entrapment: D can prove that P spouse arranged the adultery.
iv)5 YR. SOL.
(e)EVIDENTIARY ISSUES:
i)PLEADINGS ALLEGING ADULTERY AS GROUNDS FOR SEP. NEED NOT BE VERIFIED > ALL OTHER GROUNDS MUST BE VERIFIED.
ii)SPOUSE CAN ONLY TESTIFY AS TO 3 THINGS: (Aff. proof of act of adultery comes only from circum. Evid.)
a)MARRIAGE TO EACH OTHER
b)TESTIFY TO DISPROVE THE ADULTERY (give reason for why in suspicious circums.
c)TESTIFY TO DISPROVE DEFENSE (did not entrap.)
iii)OPPORTUNITY AND MOTIVE ARE USUALLY PROVEN BY CIRCUM. EVID.
(4)IMPRISONMENT
(a)DURATION MUST BE 3 YRS.
(b)IF SPOUSE LOCKED UP BY THE OTHER.
(5)ADD'L GROUND FOR SEPARATION ONLY: FAILURE TO SUPPORT
(6)HOW: GET AN ORDER FROM CT. THAT SAYS SPOUSES WILL LIVE SEPARATELY AND FORMALIZE AMT. OF SUPPORT ENTITLED TO.
(a)"SUPPORT": MEANS OF PAYOR IS ONLY FACTOR (UNLESS CHANCE THAT RECIP. COULD BECOME PUB. CHARGE).
(b)FAULT CAN BE CONSIDERED TO ENHANCE SUPPORT TO BE PAID.
f.ADD'L GROUND FOR DIVORCE ONLY: CONVERSION DIVORCE (closest thing to no-fault divorce in NY)
(1)DEF.: WAY TO CONVERT SEP. INTO DIVORCE.
(2)GROUNDS ARE THAT:
(a)P HAS BEEN SEP. FROM SPOUSE BY DECREE OR AGMT., AND
(b)HAVE LIVED APART FOR 1 YR.
(3)CAN ALSO BASE DECREE ON GROUNDS OF CRUEL/INHUMAN TREATMENT, ABANDONMENT, ADULTERY, AND IMPRISONMENT.
(4)CAN CONVERT SEP. AGMT. INTO DIVORCE AFTER 1 YR.: inc. division of prop., alimony pymts., custody of kids > after yr., can convert into divorce.
(a)REQTS.:
i)FREELY MADE (NO UNDUE INFLUENCE);
ii)MUST BE IN WRITING;
iii)MUST BE ACKNOWLEDGED (NOTARIZED); AND
iv)MUST BE FILED IN THE OCUNTY WHERE PARTY WILL BRING DIVORCE CLAIM (FILED SOME TIME BEFORE CAN GET DIVORCE).
(5)REQTS. FOR CONVERTING: LIVED SEP. FOR 1 YR. > 2 REQTS. (must operate together at same time)
(a)RESTRAIN FROM SEX W/SPOUSE FOR 1 YR. (NO COHAB.); AND
i)Can have sex w/spouse w/o intent to reconcile.
(b)NO INTENT TO RECONCILE
i)FP gives brief reconciliation that does not work out, OR isolated cohab. w/o nec. intention.
ii)If try to reconcile and fail, RESETS CLOCK TO ZERO (sex w/o intent does NOT reset clock).
(6)AFTER GETTING SEP. DECREE, CAN COHABIT W/O AFFECTING DIVORCE.
4.DISSOLUTION
a.DEF.: WHEN SPOUSE HAS DISAPPEARED.
b.REQTS.: (anachronistic)
(1)MISSING SPOUSE FROM WHOM YOU HAVE HAD NO TIDINGS FOR 5 YRS. > PRESUMPTION OF DEATH.
(a)REQTS.:
i)MUST HAVE MADE DILIGENT SEARCH.
ii)MUST PUBLISH REQUEST FOR RETURN FOR 3 WKS. IN ENG. LANG. NEWSPAPER. (circulation not imp.; langs. of spouses not imp.)
iii)RESIDENCE OF P IN NY FOR 1 YR., OR NY WAS MATRIM. DOMICILE AT TIME OF DISAPPEARANCE.
a)FP: Couple marries in 1982. H disappears in 1984. W moves away. 1989- no word from H > W CAN SUE IN NY.
c.NO ISSUES OF SUPPORT OR CUSTODY (B/C SPOUSE PRESUMED DEAD).
B.PROCEDURAL ISSUES (RE. DIVORCE, SEPARATION, AND OTHER MATRIM. TERMIN. PROCEEDINGS)
1.MUST BE BROUGHT IN SUPREME CT. IN NY.
a.BUT: If zero support action > family ct.
2.CT. MUST HAVE JURISDICTION > 2 ISSUES
a.JURIS. OVER MARRIAGE AS A THING
(1)MARRIAGE IS LIKE A LEGAL RES.
(2)If ct. has juris., ct. can affect the marriage (ie. termination).
(3)But for relief affecting prop. (ie. custody, alimony, etc.), need juris. over people, too.
(4)BAR TIP: DEFINING WHAT JURIS. IS NEC. DEPENDS ON WHAT CT. DID IN FP.
b.JURIS. OVER THE PEOPLE > REQTS.:
(1)IF ONE PARTY TO MARRIAGE DOMICILED IN NY AT TIME OF MARRIAGE.
(a)Marriage can follow people around.
(2)TO GAIN ACCESS TO THE CTS., MUST MAKE CERTAIN RESIDENCY ALLEGS. IN PLEADINGS (COMPLAINT), BUT THEY ARE NOT JURISDICTIONAL (IF THEY ARE WRONG > WILL NOT AFFECT JURIS.)
(a)WHY:Certain cases arise where party collaterally attacks a J for lack of juris.
(b)CONTENT REQTS. OF RESIDENCY ALLEGS.: (NEED 1 OF 2)
i)IF BOTH PARTIES RESIDE IN NY, AND THE GROUNDS OCCURRED IN NY > SUFF. BY ITSELF; OR
ii)IF ONE PARTY LIVED IN NY FOR ONE YR. PLUS 1 OF 3 FACTORS:
a)Married in NY;
b)Lived in NY as spouses; OR
c)Grounds occurred in NY.
(c)FP: FL couple married and domiciled in NY. Visit NY. H abuses wife. W stays in NY and H goes to FL. W estab. residency in NY for 1 yr. > W CAN SUE IN NY B/C 1 YR. RESID. AND GROUND OCCURED IN NY; OR ALTERNATIVELY, ONE PARTY LIVED IN NY FOR A YR. > DON'T NEED ANY PLUS FACTORS.
3.NEED PJ OVER D
a.APPEARANCE W/O OBJECTION > SUFF.
b.IF D IS A NY DOMICILLIARY > SUFF.
c.LONG-ARM JURIS.: CONTACTS TAHT WILL GIVE JURIS. OVER ABSENT SPOUSE:
(1)NY AT ONE TIME WAS MATRIM. DOMICILE;
(2)P WAS ABANDONED IN NY;
(3)THERE IS AN AGMT. ARISING UNDER NY LAW THAT GOVERNS THE RELATS. B/N THE PARTIES (ie. pre-nuptial agmt. signed in NY).
4.PLEADINGS MUST BE VERIFIED (EXCEPT IN CASE OF ADULTERY)
5.SERVICE OF PROCESS: D MUST BE PERSONALLY SERVED UNLESS CT. ORDERS AN ALTERNATIVE METHOD.
a.MAIL SERVICE NOT GOOD ENOUGH > MUST BE IN HAND SERVICE.
6.ONLY PARTY MOVING MATRIM. TERMINATION CAN GET SUMMARY JUDGEMENT IN DOM. REL. CASES.
7.JURY TRIAL GENERALLY AVAIL., EXCEPT FOR:
a.CASES ALLEGING PHYS. CAPACITY AS GROUNDS, AND
b.NOT FOR SEPARATION.
8.DOMESTIC REL. RECORDS KEPT CONFIDENTIAL FOR 100 YRS.
C.ECON. ISSUES AND DISSOLUTION OF MARRIAGE
1.2 ALTERNATIVE POSSIBS.:
a.PARTIES CAN RECONCILE THEIR ECON. INTERESTS BY A SEP. AGMT. (in writing, freely made, acknowledged); OR
(1)SUBJECT MATTER OF AGT. CAN:
(a)DIVIDE PROP.
(b)PROVIDE FOR ONGOING SUPPORT PYMTS. (ALIMONY)
(c)DEAL W/TESTAMENTARY ISSUES (WAIVER OF ELECTIVE SHARE, GUARANTEED PROMISE OF INHERIT.)
(d)CHILD CUSTODY AND CHILD SUPPORT.
i)BUT IS ALWAYS SUBJECT TO MODIF. BY CT. (CT. CAN MAKE SECOND-GUESS REVIEW IN INTEREST OF CHILD).
b.CT. CAN HANDLE IT AS MATTER OF STATE POWER
(1)CT. ORDERS CONCERNING SUPPORT, ALIMONY AND MAINTENANCE > 3 CONTEXTS:
(a)IF NO MARRIAGE (STRANGERS), NO SUPPORT OBLIGS. B/N THEM.
(b)IF DURING MARRIAGE, SUPPORT OBLIG. MUST BE FAIR AND REASON. BASED ON MEANS OF MORE WEALTHY PARTY.
(c)AFTER MARRIAGE, SUPPORT OBLIG. BECOMES "MAINTENANCE" (used to be called "alimony").
i)MAINTENANCE IS BASED ON NEED OF RECIPIENT > ct. may consider anything that it considers to be relevant (inc. marital fault).
ii)MAINTENANCE AUTOMATICALLY TERMINATES ON DEATH OF EITHER SPOUSE, RE-MARRIAGE OF RECIP., OR RECIP. OPENLY LIVES W/SOMEONE AS IF MARRIED (occasional sexual liasons NOT suff.).
iii)MAINTENANCE AWARDS CAN BE MODIFIED IF THERE ARE "A SUBSTANTIAL CHANGE OF CIRUCMS."
a)ie. Recip. spouse gets degree and get license, suffers diabling inj. and must leave work.
(2)CT. MODIF. OF MAINTENANCE AGMT. MADE BY PARTIES:
(a)RULE:AGMT. SURVIVES THE DECREE UNLESS SOMETHING IN FP THAT SAYS THAT AGMT. IS SUPERSEDED OR MERGED > CT. CAN MODIFY MAINTENANCE AGMTS. IN A SEP. DOCUMENT FOR EXTREME HARDSHIP.