Unformatted text preview: BARBRI Outline – New York
1) Domestic Relations:
a) Unmarried Co-habitants:
i) Agreements between unmarried co-habitants:
(1) Express agreements – NY will enforce express contracts between unmarried cohabitants.
(a) Exception – if sole consideration is sex.
(2) Implied agreements – NY will not find an implied agreement between unmarried
(3) Pre-nuptial agreements:
(a) Generally deal with money and children.
(b) Four issues:
(i) Only valid if freely made (no duress).
(ii) Must be in writing, signed, and acknowledged (notarized).
(iii) Can’t pre-agree on a divorce.
(iv) Agreement can’t be unconscionable (waiver of support that leaves the
poorer party as a public charge – welfare).
(c) Not enforceable unless the couple gets married (binding when married).
ii) Unmarried co-habitants and children:
(1) Non-marital children – conceived by and born to parents that never married.
(2) Determining who is the father:
(a) Filiation proceeding – suit to prove paternity
(i) Can be brought any time up to age 21.
(ii) Evidentiary issues:
1. standard – clear and convincing evidence.
2. Blood-typing evidence only admissible when offered by the Δ to rule
3. DNA evidence admissible by either party.
a. If 95% DNA probability, burden shifts to Δ to disprove paternity.
4. Mother’s claim of sexual access by the Δ need not be corroborated.
5. Δ’s claim of sexual access by other men must be corroborated.
(iii) When it is established that Δ is the father, it puts the child in the same
position as a marital child (same legal obligations: e.g. – inheritance, etc.).
(1) “Heart-balm” actions:
(a) NY used to recognize tort causes of action for heart balm, but they have been
abolished (and it is a felony to file a complaint alleging a heart-balm action).
(i) Five types:
1. Breach of a promise to marry.
2. Seduction of an unmarried female (suit by father of female).
3. Alienation of affections (turning married person against spouse).
4. Criminal conversion (civil cause of action for adultery against spouse’s
5. Jactitation of marriage (boasting of a non-existent marital relation). 1 (2) Deceit – a cause of action for deceit still exists in NY if you lie in order to entice
someone into co-habitation (e.g. – arrange for a bogus marriage in order to get
someone into bed).
(3) Gifts – gifts given in contemplation of marriage can be recovered if marriage falls
through (e.g. – an engagement ring).
(a) Doesn’t generally apply to gifts given while dating.
b) Getting Married in NY:
i) Capacity (see declaration of nullity, annulment).
ii) Must observe formalities:
(a) No blood test required.
(b) Must wait 24 hours after getting license before getting married.
(c) License expires after 60 days.
(d) Failure to get license does not affect the validity of the marriage (a directory
(a) Must have a formal moment where the marriage becomes effective.
(i) Ceremonial marriage – ceremony is the formal moment.
1. Need parties, officient (anyone qualified to administer an oath), and a
witness (only need one, but customary to have two).
(ii) Contractual marriage - when parties are not in the same location, each party
can sign a contract in front of a witness in their respective locations in front
of judge in NY court.
(iii) Marriage at sea – NY recognizes marriage at sea.
(iv) Common law marriage – NY does not recognize common law marriage.
1. However, NY will respect common law marriages that were validly
established in states that allow for such marriages.
c) Once Married:
i) Spouses have reciprocal duties to support each other (fair and reasonable support).
(1) Fair and reasonable – determined by looking at means of payor (not needs of
(a) Only look at needs of payee if recipient could become a public charge.
(2) If not getting requisite support, can go to family court and get a support decree
(w/o disturbing the validity of the marriage).
ii) For all other purposes, married persons are legally separate individuals.
(1) Can own property in own name.
(2) Can have separate domiciles.
(3) Can engage in contracts with each other.
(4) Can commit torts/crimes against each other.
(5) Can have whatever names they want (no requirement to take the husband’s name).
d) Termination of Marriage:
i) Five causes of action: 2 (1) Declaration of nullity – used by parties in void relationships (legally void b/c of
serious capacity problems – parties want a piece of paper acknowledging that the
marriage doesn’t exist).
(a) Two grounds:
(i) Bigamy (already married) – innocent party may get declaration of nullity.
(ii) Incest – parties too closely related.
1. Blood relation only in NY (ancestors, descendents or lineal relatives
up or down 1 generation).
a. Can marry cousins or adopted/step siblings
b. Grounds not waivable
(2) Annulment – voidable marriages (valid until annulled).
(a) Five grounds (+ 1 additional ground that post-dates marriage):
(i) Non-age – must be 18 to marry; 16 with consent of 1 parent; 14 with
consent of 1 parent and judge.
1. Annulment is discretionary on the part of the courts.
(ii) Lack of mental capacity – not lucid at time of marriage.
1. If become lucid and stay in marriage, you waive the right to annul the
2. Guardian (“committee”) can seek annulment on behalf of the
(iii) Duress – physical threats, etc.
1. If after duress is removed, you remain in the marriage, you waive the
right to annul the marriage.
(iv) Fraud – exists when prior to the marriage, one fiancée lied to the other about
something that goes to a vital element of the marriage.
1. Three types of fact patterns:
a. Misrepresentation concerning religion (considered vital).
i. Waived if stayed in marriage.
b. Fraud relating to sex or procreation (considered vital).
i. E.g. – lying about ability/willingness to have children or about
ii. Waived if stayed in marriage.
c. Fraud about financials (not grounds for annulment).
2. Statute of Limitations – three years from discovery.
(v) Lack of Physical Capacity – an incurable physical condition that prevents
safe and normal sexual intercourse.
1. This ground is based on the assumption that couples don’t have sex
2. Focuses on the ability to have sex, not the ability to have children.
3. No jury trial.
4. Statute of Limitations – five years.
(vi) Five years of incurable insanity – must begin after the marriage.
1. This is considered a separate ground because it is not something that
pre-exists the marriage.
2. No statute of limitations.
(3) Separation and Divorce: 3 (a) Separation – does not terminate the marriage; allows parties to live separately;
adjudicates the rights of the parties and boils them down to a court order.
(i) why separation? – financial benefits (social security, etc.); ethical reasons
(against divorce, etc.).
(ii) procedure – no jury trial for separations
(b) Grounds (for separation and divorce):
(i) Cruel and inhumane treatment – encompasses physical and mental abuse.
1. Must endanger the well being of one spouse (subjective test – can this tolerate behavior or is this ’s well being in danger?).
2. Sex after abuse is a factor in establishing a defense but is not an
1. Four elements:
a. A voluntary departure of one spouse from the other.
b. Departure is w/o consent of the spouse.
c. Departure is without justification.
d. No intent to resume cohabitation.
2. Length of abandonment:
a. separation – abandonment must be for at least one year.
b. divorce – no minimum time period
3. Constructive abandonment:
a. can establish abandonment if one party leaves the relationship
without physically leaving the relationship (e.g. - refuses to have
conventional sex or is being uncommunicative).
i. must establish repeated requests.
(iii) Adultery – an act of sex or deviant sex with a person who is not your
a. recrimination – can’t get divorced on grounds of adultery if you
yourself engaged in adultery.
b. condonation – waiver or forgiveness (if resume cohabitation after).
c. connivance – entrapment (spouse was set up to cheat).
2. Statute of limitations – five years.
3. Procedural aspects:
a. pleadings – answer in adultery cases does not have to be sworn to
(generally pleadings in NY must be sworn to).
b. Spouses can only testify to three things:
i. Both spouses can testify to facts of the marriage (when
ii. can testify to deny adultery.
iii. can testify to disprove defense.
c. Anything else must be proven through circumstantial evidence and
third party testimony.
d. Two kinds of witnesses whose testimony must be corroborated:
ii. Prostitutes. 4 (iv) Three years of consecutive imprisonment.
(c) Ground (for separation only):
(i) failure to support – separation order will fix amount of support and set up
(d) Ground (for divorce only):
(i) conversion divorce – NY does not have true no-fault divorce; to get a
conversion divorce, couple must be formally separated for 1 year pursuant
to a separation agreement (when both parties agree to separate) or court
order (when one party has grounds for separation).
1. Separation agreements:
a. Analogous to a prenuptial (a contract in contemplation of divorce).
b. Customarily deal with:
i. Property division;
ii. Periodic maintenance payments
iii. Child custody
iv. Testamentary issues
c. Formal requirements:
i. Must be freely made;
ii. in writing; and
d. Must file with clerk.
i. Does not need to be on file for full year.
e. After executed, must be separate and apart for 1 year to get
i. Can’t cohabitate (sex) with intent to reconcile (this rescinds
ii. Sex without intent to reconcile does not rescind agreement.
2. Separation decrees (court ordered):
a. Can cohabitate without affecting 1 year conversion.
(4) Dissolution of marriage – when spouse disappears
(a) A judicial presumption of death.
(b) Must show that spouse has been missing without tidings for 5 years.
(i) Must first make a diligent search
(ii) Must publish request that spouse returns for 3 consecutive weeks in English
(iii) Party must have lived in NY for 1 year or NY must have been matrimonial
domicile at time of disappearance.
ii) Procedural Issues (for termination of marriage):
(1) Subject-matter Jurisdiction – 1 spouse must be a NY domiciliary (which can be
accomplished almost over night), and must meet certain residency requirements
(a) Residency requirements:
(i) If both parties live in NY and grounds occurred there, then immediate access
to NY courts.
(ii) If only 1 party lives in NY, can gain access after 1 year of residency if one of
certain plus factors is present. 5 1. Plus factors:
a. Originally married in NY.
b. Lived at one time in NY as a married couple.
c. Grounds occurred in NY.
(iii) If only 1 party lives in NY and no plus factors are present, there is a 2 year
residency requirement to gain access to NY courts.
(2) Personal Jurisdiction – in order to issue collateral orders (re: money, children,
etc.) must have personal jurisdiction over Δ.
(a) Ways to establish personal jurisdiction:
(i) Δ is NY resident;
(ii) Δ voluntarily appears;
(iii) minimum contacts, etc.
iii) Substance of court orders:
(1) If there is a separation agreement, the court can simply enforce the contract. If
not, however, the court must allocate money, property, and custody between the
(i) Maintenance (alimony) – based on the needs of the recipient; court will fix
based on a list of factors including marital fault.
1. Usually in the form of order to make periodic payments.
a. Can get order modified if circumstances change (must be
substantial change – e.g.: payor gets laid off, payee finishes college
b. If maintenance being paid under separation agreement that was not
merged into divorce, modification is only available in cases of
2. How long last?
a. As long as the order says it does unless automatic termination,
which occurs if:
i. 1 party dies;
ii. recipient gets married;
iii. recipient lives openly with another person as if married.
b. Parties can provide in separation agreement that payments will
continue beyond automatic termination dates (above are simply
(i) NY is an equitable distribution state.
1. Assets are divided into 3 categories:
a. Husband’s separate property;
b. Wife’s separate property;
c. Marital property.
(ii) Separate vs. Marital property:
1. Separate Property:
a. anything spouse owned prior to marriage;
b. gifts or inheritance that spouse received during marriage in sole
and separate name; 6 c. anything that spouses agreed would be treated as separate property;
d. personal injury compensation;
e. passive appreciation on all of above.
i. Any appreciation caused by the active effort of other party
(both homemakers and parents are considered active
participants if, in providing that service, they freed up time for
the other spouse to increase the value of the asset).
2. Marital Property:
a. Anything that is not separate property is marital property
regardless of whose name title is in (including pension plans and
1. Husband gets all of his separate property.
2. Wife gets all of her separate property.
3. Marital property is divided equitably.
a. Court is not supposed to consider marital fault (unless egregious).
b. Court can distribute assets in kind or in the form of cash money
(taking into account tax concerns, etc.).
i. In distributing a license or degree, court will look at stream of
income and require payment of a distributive share.
c. The longer the marriage, the more inclined the court is to give a
(i) In general:
1. If you don’t want them you don’t have to have them.
a. You have a constitutional right to contraception and abortion.
2. If you want them you can have them:
a. Artificial Insemination – if married and husband consents, husband
will be treated as father (donor has no legal connection to child).
b. Surrogate Parenting – NOT allowed; any agreement between
surrogate mother and married couple is void.
i. Any adult can adopt.
ii. A minor can adopt if married and seeking to adopt spouse’s
iii. Must be looking to create a bona fide parent/child relationship.
iv. Consent to adopt:
(1) Need child’s consent if over age 14.
(2) Need parents’ consent if child is under 18.
(a) Parents can lose the right to veto adoption if:
i. surrender child to an adoption agency;
ii. abandon child (6 months with no contact);
iii. neglect (1 year without substantial contact);
iv. parent is mentally incapacitated.
(b) Consenting parents are given a period to think about
giving consent (can revoke if they change their mind). 7 (3) There will be an investigation of the adopting home (NY
believes in religious matching where possible).
(4) Adoption order is issued at a court hearing.
(5) Once final, it creates the exact same relationship as that
between a biological parent and child.
3. If you have them you must support them.
a. Both parents must support child through age 21 (or college
graduation in special circumstances).
b. Amount is determined by guidelines, tables and formulas (very
i. Subject to modifications
(1) If child is seeking modification, look for changed
(2) If parent is seeking modification, look for severe and
changes in circumstances.
(ii) Child Custody:
1. Generally, if court is going to give custody to 1 parent, it will do so “in
the best interests of the child.”
a. A court will consider various factors in determining what is in
child’s best interest.
b. No gender presumption.
c. In custody battle between biological parent and non-parent, there is
a rebuttable presumption that the child’s best interests lie with the
a. Biological parent without custody is always entitled to visitation.
i. It is not dependent on payment of support.
ii. To interfere with right to visitation could result in contempt.
b. Non-parents can petition for visitation and it will be granted if
court determines it is in best interests of child
i. Supreme Court: visitation cannot be given to grandparents over
objections of biological parents.
e) Conflicts of Laws (Federalism):
i) Marriages – a marriage valid where contracted will be honored in NY unless the rule
under which marriage occurred violates a strong public policy of NY.
(1) Bilateral divorce in another state – valid in NY (no collateral attack)
(2) Unilateral (ex parte) divorce in another state – presumptively valid (can be
(3) Bilateral divorce in a foreign country – valid in NY
(4) Unilateral (ex parte) divorce in a foreign country – invalid in NY
f) Domestic Relations Supplement:
i) NY will recognize divorces valid in other states even if that divorce would not have
been valid in NY.
(1) Exception – if grounds violate a strong public policy of NY. 8 ii) Out-of-state divorce:
(1) Four scenarios:
(a) Bilateral sister state divorce – granted full faith and credit in NY.
(b) Unilateral (ex parte) sister state divorce – respected by state of NY but nonparticipating party can challenge the jurisdiction of the out-of-state court.
(c) Bilateral foreign divorce – recognized by NY under principle of comidy
(d) Unilateral (ex parte) foreign divorce – no
iii) Interstate custody order:
(1) scenario - one parent moves to another state. Wants to get custody reevaluated by
court in new state.
(2) UCCJA – statute provides that a curt only has jurisdiction in a child custody
matter if it is the home state of the child (state when child has been living with
parent for six months prior to litigation).
(a) If no home state – jurisdiction belongs to the state that has both substantial
contact with the child and where substantial evidence is located.
iv) Interstate Support issues:
(1) A parent is obligated to pay child support, moves to a new state, asks for a reevaluation of support.
(2) State level statute:
(a) UIFSA – every state must defer to the state that is the home state of the child
(3) Two federal statutes:
(a) FFCCSOA – obligates every state to give full faith and credit to the
jurisdiction that initially entered support order.
(b) CSRA – if you fall one year or $5000 behind in child support payments and
your child lives in another state, you may be sent to prison. 9 2) Criminal Law:
a) Jurisdiction – a state acquires jurisdiction to adjudicate a crime if that state is the legal
situs of the crime (the conduct happened there or the result happened there).
i) No jurisdiction just because a participant is resident of a particular state.
ii) Omission – jurisdiction lies where the act should have been performed.
b) Merger – generally no merger of crimes.
i) For bar purposes, solicitation and attempt merge into the substantive offense.
(1) Conspiracy does not merge with substantive offense.
c) Essential Elements of a Crime:
i) Act or Omission:
(1) Act – any bodily movement
(a) The following bodily movements do not qualify for criminal liability:
(i) conduct not product of own violation (e.g. – pushed into person);
(ii) reflexive or compulsive acts (e.g. – epileptic seizure);
(iii) acts performed while unconscious or asleep (e.g. – sleepwalking, not
falling asleep at the wheel).
(2) Omission – a legal duty can arise in one of 5 ways:
(a) by statute (e.g. – must file tax return);
(b) by contract (e.g. – lifeguard);
(c) because of a relationship between the parties (e.g. – parent/child, etc.);
(d) where one party voluntarily assumes a duty of care towards another and fails
adequately to perform it (e.g. – person is drowning, Δ swims out to help, sees
who it is, and swims back);
(e) where your conduct created the peril (e.g. – pushed someone into pool that
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- Fall '19