family law: frequent issues

  1. equitable distribution (marital vs. separate property): upon the dissolution of marriage, marital property dealt with fairly. Fairly does not mean equally.
  2. equitable distribution: marital property is everything acquired during the marriage, with some exceptions:
    • - before marriage property
    • - prenup, other agreements
    • - gift or inheritance 
    • - increase in value based on active appreciation (i.e. renovations)
    • - injury compensation
  3. equitable distribution: consider totality of the circumstances, i.e.
    any factor court deems just and proper, including: 

    • - income of property of each party at time of marriage
    • - loss of inheritance
    • - age and health of the parties
    • - duration of the marriage
  4. equitable distribution: other separate property:
    • -future inheritance and future life insurance payments 
    • - retirement/pension benefits that have't vested
    • - social security
    • - stock plans if not payment for work done during the marriage
  5. equitable distribution: court looks at present value of professional license AND career potential enhancement of that professional license
  6. equitable distribution: any property acquired after the commencement of a divorce action is separate property
  7. equitable distribution: separation actions do not terminate the marital economic partnership and property acquired after commencement of  a separation action is still considered marital property
  8. equitable distribution: payments are not taxed in the same way as regular income:
    • - property is transferred tax-free
    • - the transferee transferor have the same tax basis
    • - property becomes taxable when sold
  9. equitable distribution: property that is transferred b/w divorcing spouses is tax free at that time
  10. equitable distribution: the transferee transferor have the same tax basis, and the property becomes taxable when sold
  11. child support: paternity by estoppel (equitable paternity): the court may declare paternity of a child, regardless of whether the man and the child are biologically related, when
    • -it is in the best interest of the child and
    • - the man has taken on the role of father
    • - and established a bond with the child
  12. child support: paternity by estoppel: a presumption that a child born in wedlock, or who was conceived shortly before wedlock, is the child of the woman and her husband.  Child then becomes a marital child who has rights and obligations from his married parents
  13. child support: paternity by estoppel: Evidence to the contrary of the presumption for paternity must be established by clear and convincing evidence.
  14. child support: paternity by estoppel: Presumption does not apply if the husband was not living with the mother at the time of conception, but court can declare paternity if meets other factors (i.e. best interest, bond with child)
  15. child support: the payment by one parent, to the other, for the support of a common child.
  16. child support: belongs to the child, not the parent, therefore, parents cannot bargain away child support payments, nor can child support payments be cancelled or terminated based on a parent's conduct.
  17. child support: cannot be extinguished regardless of the circumstances
  18. child support: modification: permitted when:
    -there is a substantial change in circumstances regarding the child's needs or parent's financial situation, OR

    - 3 years have passed OR

    - a party's gross income has changed by 15% or more since the previous child support order was entered modified or adjusted
  19. child support:modification: only available for future obligations, not past arrears
  20. child support: modification: court considers a number of factors, including the involuntary loss of a job
  21. child custody: two forms- legal and physical
  22. child custody: as long as no extreme acrimony, joint legal custody and may be joint physical custody
  23. child custody: physical custody: even if joint, does not require and even split b/w the parents
  24. child custody: if court decides the arrangement, looking for the best interests of the child
  25. child custody: factors that are relevant, fair and just:
    • - whether both parents of parenting skills
    • - physical and mental health of each of the parents
    • - willingness to foster a relationship with the non-custodial parent.
    • - preference to keep blood siblings together
    • - if domestic violence, a sworn statement of DV MUST be considered by the court
  26. child custody: factors that are irrelevant
    • - race
    • - religion
  27. child custody: parenting tim (visitation) presumed to be in the best interests of the child, but that only goes to an actual parent not someone who has merely held himself out as a parent
  28. child custody: grandparents may seek visitation, but the court will defer to the wishes of the biological parents
  29. child custody: interfering with parenting time is not a basis to discharge child support or child support arrears, though it may modify spousal maintenance
  30. child custody: enforcement given full faith and credit
  31. child custody: modification: relocation (parent aims to relocate with a minor child) a frequent reason for modification, but considered as per the best interests of the child
  32. child custody: modification:relocation: courts consider:
    • - the nature, quality, and involvement of the child with the parent that is not seeking the relocation
    • - age and needs of the child, and the impact the proposed relocation will have on that development, including any special needs of the child
  33. child custody: modification: relocation: courts more willing to permit a custodial parent to relocate with a minor child, even when it significantly impacts the non-custodial parent's visitation, when the purpose of the relocation is due to the custodial parent's spouse
  34. child custody: Uniform Interstate Family Support Act: state that issued the original order awarding child support will have continuing exclusive jurisdiction until the parties no longer reside there
  35. child custody: UIFSA: 5 different bases to enforce support
    • - respondent (out of state parent) has lived with the child in the state
    • - has lived in the state and provided support for the child or paid prenatal expense
    • - child lives in the state as a result of the acts or directives of the respondent parent
    • - respondent had sexual intercourse in the state which may have resulted in the conception of the child
    • - respondent asserted his parental rights in the Putative Fathers Registry in New York
  36. conversion divorce: results from the court's conversion of a separation agreement into a final divorce decree
  37. conversion divorce: parties must have lived apart from each other for at least one year, agreement must be signed and notarized by both parties, and it must be filed with the court before the commencement of the divorce action
  38. conversion divorce will not be granted when there is a material breach of the separation agreement.
  39. adultery cannot be used as defense to a conversion divorce
  40. spousal maintenance: in general it may be modified, even when it has been deemed permanent
  41. spousal maintenance modification: If the support award was part of an agreement between the parties, as opposed to a court order, the party seeking modification must demonstrate extreme hardship.
  42. jurisdiction: Supreme Court has exclusive jurisdiction over divorces and property distribution
  43. subject matter jurisdiction: NY has durational residency requirements to file a matrimonial action in NY
  44. subject matter jurisdiction: if both parties are NY residents, it doesn't matter how long the parties have lived in New York
  45. subject matter jurisdiction: if only one party lives in NY, then that party must have lived in NY for at least one year and one of the following three conditions applies:
    • - they were married in NY
    • - they resided in NY as spouses; OR
    • - the cause of action arose in NY

    ~ if none of the above, then at least one party must have continuously resided in NY for 2 years
  46. personal jurisdiction: NY allows ex parte divorces (court does not have to have personal jurisdiction over both parties), as long as the court has subject matter jurisdiction over the divorce
  47. personal jurisdiction: divisible divorce: can deal with divorce itself in NY and the related matters somewhere where personal jurisdiction over D can be obtained
  48. personal jurisdiction: long arm statute: NY can extend jurisdiction when matrimonial and child support issues are combined if support and maintenance issues are combined when:
    • - NY was the matrimonial domicile of the parties before the separation
    • - D abandoned P in NY
    • - claim for relief accrued under NY law; OR
    • - claim for relief is pursuant to an agreement that was agreed to in NY
  49. jurisdiction: foreign divorces: NY recognizes divorces finalized in foreign countries if:
    • - the parties properly appeared AND
    • - petitioning spouse was a resident of that country

    ~ mail order foreign divorces not recognized in NY
  50. constitutional issues for indigents: unconstitutional to require fees that would preclude an indigent person from being able to divorce- must be a mechanism to waive the fee
  51. constitutional issues for indigents: no legal right to counsel in a NY divorce action, but the court has discretion to award fees and costs as part of the divorce decree if one party unable to pay those fees.
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family law: frequent issues