Unmarried cohabitants + no intention to marry: Child born to unmarried women.
1) Expressly enter into a K: NY courts will enforce the
agreement if the consideration for that agreement is Rights: treated virtually the same as marital children
something other than sex. 1) Inherits from both biological parents as issue.
2) Promise exchanged: if unmarried cohabitants do not 2) Standing to sue for wrongful death if biological
enter into an express K, NY will not imply a K. Ex. parents die
H&W enter into a K that provides “in consideration 3) Entitled to government benefits
for managing household affairs, H promises to pay..” 4) Entitled to economic support from both parents
through the age of minority.
Gifts in contemplation of marriage: recoverable if
marriage never occurs. Biological parents: filiation litigation necessary if
dad does not acknowledge paternity
Ante-nuptial agreements: express K in contemplation of 1) Family Court: can be instituted by mother or
marriage. Typically will address economic matters child acting through a guardian
(property divisions, maintenance) in the event that 2) Filed: before child turns 21.
marriage is unsuccessful. Can be a legacy in a Will or
child custody/support (subject to judicial scrutiny). Filiation proceedings
1) Validity: must be freely made (no duress). 1) Proof: requires that child establish D is father
2) SOF: K must be in writing signed by both parties (+ by clear and convincing evidence
must be acknowledged) Mother’s claim of sexual access by D need
3) Cannot pre-agree on a divorce NOR K yourself to NOT be corroborated
engage in conduct that would be grounds for 2) Defense: D’s claim that other men had sex
divorce (ex. committing to divorce later; I promise w/mother MUST be corroborated.
to commit act of adultery for grounds of divorce). 3) Evidence: DNA evidence admissible (by motion
4) Cannot be unconscionable: waiver of support is not of either party). If it shows greater than 95%
necessarily unconscionable (ex. in event of divorce, probability that D is father -> presumption that
no alimony). Would be unconscionable if it would D is the father that he must rebut (by showing
leave the person incapable of supporting themselves. complete impossibility of argument. Ex. I was
**Must be married or else ante-nuptial agreements never in Iraq for 5 years, I can’t be dad).
come into effect. Divorce does NOT invalidate the 4) Objective: Triggering child support obligation
Matrimonial Tort Actions (ALL ABOLISHED)
5 matrimonial tort actions: (felony if you attempt to secure settlement via these actions)
1) heartbalm claims: claims for emotional distress arising from romantic injuries
2) breach of promise to marry: breaking engagement
3) seduction of an unmarried female, alienation of affections: married person’s action against 3rd person that
made spouse hostile
4) criminal conversation: civil claim for adultery
5) jactitation of marriage: representing widely in the community that you’re married to someone when in fact
Mechanics of Marriage Obligations of Marriage
Ceremonial Marriage Obligations:
1) License: get from city/town clerk. 24-hour 1) Sexual exclusivity: monogamy.
waiting period and only valid for 60 days. 2) Economic support of spouse: reciprocal obligation.
**Failure to get a license will not affect the validity of Amount of support: “fair and reasonable support”
the marriage. (based on the resources of each party).
2) Ceremony (solemnization): requires a solemn Needs test: always must support up to the
declaration before an officiant and a witness. point that you put them on public assistance.
Officiant = members of any religious Means test: based on your economic
denomination, judges, anyone who can resources.
administer an oath. Judicial obligation: court considers a needs
Witness: only one required. and means test to set a number.
Solemn declaration: must appreciate and
understand the responsibility (no formal NOT obligations: degree of individuality
words) 1) No requirement to take property jointly
2) May have separate domiciles
Contractual marriage: convenience provided to 3) May use separate surnames
individuals who cannot be at the same place. Get the 4) May enter into Ks where they are independently
license and each party separately goes to the judge and responsible. BUT IF you incur a debt for
signs w/one witness per party. necessaries (food, medical care) -> spouse may be
responsible for these debts. IF one spouse acts as
CL marriage (NOT RECOGNIZED IN NY): if a couple an agent for another, principal spouse liable for
enters into a valid CL marriage elsewhere, NY honors the debts of the agent.
the out of state CL marriage. 5) Spouses can commit torts and are independently
liable if they tort another and can sue each other.
If spouse commits crime against spouse ->
Methods of Termination Method 1: Declaration of Nullity (marriage automatically VOID)
1) Declaration of Nullity One party in a marriage lacked capacity at the time they got
2) Annulment married in a way which makes the marriage totally void (you can
3) Dissolution just walk away). 2 grounds unique to the marital status:
4) Legal Separation 1) Bigamy: if you are married and you have not dissolved that
5) Divorce marriage and the spouse is still living, you lack capacity to
Ethical Issues marry others. All subsequent marriages are void. When a
At beginning/during representation, spouse learns of the other marriages, spouse can get a
attorney must give client: declaration of nullity.
1) Statement of client rights and 2) Incest: lack legal capacity to marry close blood relatives. If
responsibilities learned subsequently, the deceived party can get a declaration
2) Enter into a written retainer (fee of nullity. Also a crime punishable by up to 6 months.
arrangement). Cannot take a a. CANNOT marry: your ancestors or descendants (mom,
mortgage on client’s house as grandma, daughter), siblings (whole or half blood),
security for your fee. lineal relatives up and down one generation (aunts or
3) At end of case, need closing nieces).
statement b. CAN marry: first cousins, persons related by marriage.
**For domestic relations cases, NO SEX
w/client during representation of the Reasons to get a declaration of nullity: clear the record or the need
client. for judicial assistance for collateral matters.
Method 2: Annulment (VOIDABLE)
There’s a capacity problem BUT marriage only voidable. Marriage continues until you get an annulment.
Grounds for annulment waivable: continue to cohabit after you learn of the problem.
Grounds for annulment:
1) Non-age (WAIVABLE): too young. NY, must 18 to get married. Cohabiting after 18: cannot annul.
If you marry before18th, you can seek annulment (not automatic + at court’s discretion).
If you are 16 or 17, you can get legally married w/the consent of both of your parents.
If you are 14 or 15, you can get married w/the consent of parents + judge.
If you are UNDER 14, can never marry.
2) Mental incapacity (WAIVABLE ONLY IF the incompetent party become lucid): both developmental
disabilities and mental disorders. Claim usually brought by a guardian.
3) Duress(WAIVABLE): married under force of physical coercion.
4) Fraud (WAIVABLE): any misrepresentation or any concealment going to a vital or essential aspect of the
marriage in the period prior to the wedding. Must be calculated to deceive or mislead a reasonable person.
a. Misrepresentation about religion (WAIVABLE): lying about faith, intentions to convert.
b. Misrepresentation concerning procreation or sex (WAIVABLE): lying about ability to have children
(sterile), about the size of the family you wish to have, about sex (orientation), about sexual history
(being a prostitute).
c. Misrepresentation about money, finances, wealth, career: NOT usually essential/vital to the marriage.
d. WAIVED if you voluntarily cohabit w/full knowledge of the facts.
Bring w/i 3 years of learning of the fraud.
5) Physical incapacity: incurable physical condition preventing you from engaging in safe sexual intercourse.
Not about procreation, but copulation. Presupposes that couple has not been sexual prior to marriage.
Must be incurable. Focus is on the formal act of intercourse. NO JURY TRIAL
Must be brought w/i 5 years of marriage.
6) 5 years of incurable insanity: need 3 court appointed psychiatrists to agree on diagnosis.
**Annulment grounds: too young, too mental, shotgun weddings, too dishonest (except about wealth), too
sterile, too insane.
Litigation based rules
1) Testimony of one of the parties must be corroborated (medical evidence, etc.)
2) Jury trials generally available EXCEPT physical incapacity
3) Default SOL is 6 years
Method 3: Dissolution
Only used when spouse has disappeared. In order to obtain a dissolution decree, must offer evidence that your
spouse has been missing w/o any tidings for 5 years.
1) Evidence of a diligent search
2) Publish a request that spouse returns for 3 weeks in an English speaking newspaper.
3) Must be NY resident for at least 1 year OR NY must be matrimonial domicile at time of disappearance.
NO collateral orders: no child custody, alimony. It’s as if the other party is dead: check the Will or intestacy.
Method 4: Legal Separation (no jury trials and marriage continues)
Does NOT terminate the marriage. Adjudicates the rights of the parties regarding economics and children, but
does not sever the marriage (still can’t marry others). Retaining the marriage for the benefits of its status: tax
reasons, to share in estates, to receive government programs; religion.
Grounds for separation
1) Cruel and inhuman treatment (subjective test): either physical or mental abuse that endangers the well-
being of the other spouse (not trivial episodes). Conduct of D must render it unsafe or improper to allow
spouses to continue cohabitating. If cohabitation after mistreatment: court can look at it as a factor in
granting separation, but NOT an absolute defense.
2) Abandonment: no set period of abandonment. Can be constructive: locking the other spouse out or
refusing to interact w/other spouse. No SOL for abandonment since continuing situation. Elements:
a. Voluntary departure by one spouse from the other
b. W/o consent of the other
c. W/o justification
d. W/no intent to return (normally inferred from length of absence or surrounding circumstances).
3) Adultery: an act of sex OR deviant sex voluntarily performed w/another person not your spouse during
your marriage. Cannot take refuge in the type of sex. Must be another person. Defenses:
a. Reprimination: off-setting adultery by complaining party.
b. Condonation: form of waiver. After learning of adultery, you freely cohabit w/spouse. Cannot
raise it again.
c. Connivance: similar to entrapment. D committed adultery, but P set it up.
Procedure: bring action w/i 5 year SOL
Evidentiary points: spouses can only testify to
Prove the marriage
Testify to deny the adultery
P can testify to deny a defense.
Proof of adultery must come from 3rd party testimony or circumstantial evidence or from corroboration
from detectives/prostitutes: show opportunity and disposition to commit adultery.
Opportunity: change to be alone together
Disposition: exchange of communications
4) 3 years consecutive imprisonment: spouse is convicted and imprisoned for minimum of 3 years.
5) Failure to support
Method 5: Divorce
NY does not have a true, no fault divorce mechanism. Grounds for divorce (same first 4 as for separation)
1) Cruel & inhuman treatment
2) Abandonment: same, but must have lasted for 1 year at time of filing divorce
4) 3 years consecutive imprisonment
5) Conversion divorce: parties must first formally separate (court order separation litigated or a separation
agreement [see below]). After formal separation, MUST live separate & apart for 1 year. After 1 year, go
back to court and “convert” separation -> divorce. In order to get court order separation -> need fault and
both parties must agree (if no marital fault and only 1 party wants to exit the marriage, cannot negotiate a
separation agreement = NO TRUE NO FAULT DIVORCE)
Separation Agreements Procedure for Terminating Marriage
Separation agreements: APPLY K PRINCIPLES SMJ: one spouse must be a NY domiciliary (measured by
1) Freely made intent) + residency requirement. 3 ways to satisfy
2) In writing residency:
3) Acknowledged 1) Both parties are NY residents and grounds occurred
4) Filed w/the court prior to seeking a conversion in NY: NO minimum residency
divorce 2) Only one party is NY resident, 1 year residency
**Note: informal letters btw spouses not a valid required IF
separation agreement. They got married in NY
**If there’s a problem, look to K defenses (fraud). They lived in NY as spouses
Grounds occurred in NY
Rescinding separation agreements: 3) Only one party is NY resident and none of the
1) Cohabiting w/intent to reconcile. Efforts to above: 2 year residency required
reconcile (even if brief) reset the 1 year clock **If you want alimony, you need PJ.
and separation agreement must be re-executed.
Casual/isolated sex DOES NOT reset the clock. Pleadings: must be verified EXCEPT in a separation or
2) Material breach by one party. divorce decree alleging adultery.
Alimony (aka Maintenance) Modification
Types Either party may come back and ask for modification
1) Temporary maintenance: while a matrimonial of the award. A request for increased support based
action is pending, NY courts can require on the fact that support is inadequate will be granted
temporary maintenance. upon showing:
2) Post judgment maintenance: not automatic 1) a substantial change in circumstances warranting an
entitlement; based on needs of recipient. increase AND
2) modification is in the best interests of the child.
Determining whether/how much maintenance: NY **If modification is sought for reasons other than
courts can consider any factors deemed relevant inadequacy, motion must demonstrate an unforeseen
(including marital fault) and unreasonable change in circumstances.
Age/health of parties
Job skills Maintenance paid pursuant to a separation agreement,
Earning capacity court needs to see extreme hardship before modifying
Time needed to develop job skills the agreement. Modifications only operate
Custodian of young children prospectively (past due payment considered liquidated
Duration of marriage (standard of living they and unalterable debt)
enjoyed as an economic unit). Enforcement
Options if spouse does not pay maintenance
Separation agreements: courts can incorporate 1) Seize property and sell it
separation agreements into the divorce decree but 2) Attach wages
must engage in close scrutiny for any evidence of 3) Take away licenses (driver’s, professional)
over-reaching. 4) Incarceration
Default: death of either party is automatic termination
date of the maintenance.
Alternatively: could specify life of maintenance or
have it continue past your life.
**Terminates if spouse remarries or lives w/another as
if they were spouses.
NY is an equitable distribution state. 2 step analysis
1) Categorize the assets the couple owns into 3 broad groups:
Husband’s separate property -> H automatically keeps
Wife’s separate property -> W automatically keeps
Marital assets subject to distribution: everything acquired including all salaries, bonuses, stock options,
pension rights, professional licenses and professional degrees earned during marriage
**Types of separate property:
i. Anything owned prior to marriage
ii. Any bequests or gifts received by one spouse in his/her own name during marriage. Gifts
received jointly are marital property
iii. Personal injury compensation
iv. Property that they mutually agree to treat as separate
v. Passive appreciation in the value of items in the 1 st four categories. Appreciation due to
work or effort during the marriage treated as a marital asset subject to distribution.
2) Divide up through equitable principals. Generally, courts should not consider marital fault. Similar to the
evaluation for maintenance.
Age/health of parties, job skills, earning capacity, time needed to develop job skills, custodian of young
children, duration of marriage (standard of living they enjoyed as an economic unit).
3) Transfer: order assets transferred in kind or lump sum. No set or predetermined division. In marriages of
long duration ≈ 50/50 distribution (but still discretionary).
Alternatives to Having Children Adoption
1) Artificial insemination: child considered Married couples, a single person can adopt or a married minor
a marital child. Husband treated as can adopt spouse’s children. Anyone can be adopted if the goal
father (not donor). of the adoption is to establish a genuine parent/child
2) Surrogate parenting (surrogate parenting relationship.
Ks NOT ALLOWED) having a woman
give birth for you. Religious matching: try to place child w/same religious family
3) Adoption as birth family.
Consent Biological Parents Consent Rights Lost
Either obtain consent of all parties or show 1) They surrender the child (up for adoption). Done at or
consent is unnecessary. near child’s birth.
1) If child is < 18, either get consent of 2) Parents are mentally incapacitated and lack ability to care
biological parents or show consent is for the child.
unnecessary. 3) Parent abandons the child. Abandonment = 6 months w/o
2) If someone else has legal custody of that any contact (father of a non-marital).
child: that person must also consent. 4) Neglect: parent’s conduct poses an imminent danger to the
3) If adoptee is > 14, adoptee must consent. child AND behavior falls below minimum degree of care of
a reasonable parent under similar circumstances.
Termination of Adoption Support
Similar to grounds of losing biological rights Must support through 21. NY extends through 21 until
1) Abandonment completion of college degree if parents have financial means &
2) Neglect child has academic ability.
3) Mental incapacity Amount of support order: every state has support guidelines
4) Abuse (%s of income). Request for change: need court order
Child Custody Arrangements: Standard Visitation Rights/Custody Contests
Standard: best interests of the child. Visitation Rights: once custodial award to one parent, the other
Party’s wishes gets visitation. Denied ONLY IF evidence of some kind of
Child’s wishes danger to the child.
Health and age of all parties concerned If grandparents ask for visitation rights -> look at best
Domestic violence interests of the child. Parents can veto visitation rights of
Emotional circumstances grandparents.
Parent’s new relationship
Continued connection w/extended Custody contests
family members 1) Biological vs. non-biological parents: presumption in favor
of biological parent unless parent is unfit or there are
Procedure: court may take the unsworn extraordinary circumstances.
testimony of the child in camera. Judge must 2) Grandparents and custody: explicit standing to seek
make a record of the conversation so it can custody in extraordinary circumstances where child lived
be viewed on appeal. w/grandparents for past 2 years.
Relocation: if custodial parent wants to relocate, they must go
to court and prove by a preponderance of the evidence that
move is in the best interests of the child.
FEDERALISM/CONFLICTS OF LAWS
Out of State/Foreign Marriages Out of State Divorce
If valid where contracted, valid in NY Bilateral divorce (both parties participated) is VALID in NY
UNLESS in violation of strong public policy and neither party can subsequently collaterally attack it.
Out of Country Divorce Ex parte or unilateral divorce from another state, is
If bilateral: VALID. presumptively VALID in NY IF the D was served with process.
Can be collaterally attacked by showing that petitioner was not
If ex parte: INVALID. domiciled in the forum. A foreign divorce will be res judicata
w/respect to all issues that could have been raised by P.
Non-Payment of Economic Obligations
Obligation to pay maintenance or child support and obligated party moves out of state and stops paying.
1) State statute (Uniform Interstate Family Support Act): court that entered initial support order has
continuing exclusive jxn. Direct enforcement of NY order.
Mail to out of state employer of obligated party. Employer must withhold support from paycheck
and send it back OR
Mail to out of state court which will go through compulsory process to enforce.
2) Federal statute (Full Faith and Credit for Child Support Orders Act): every state must give full faith and
credit to child support orders entered by different jxns. Presupposes that the state had proper jxn at the
time and both parties had the chance to be heard. Child support order are NOT final orders (modifiable).
3) Child Support Recovery Act: federal crim law; for 1 year, if you’re more than $5K behind in support
payments and your kid lives in another state -> felony.
4) Parental kidnapping (Uniform Child Custody Jxn and Enforcement Act): the original order state has
continuing exclusive jxn.
**Try to defer to child’s home state.