NYLE - Matrimonial and Family Exam Questions and Answers 100% Pass

NYLE - Matrimonial and Family Exam Questions and Answers 100% Pass Getting Married: Same sex, void and voidable marriages and recognition of common-law marriage: DRL §§ 5, 6, 15, 15-a - A marriage that is otherwise valid is valid regardless of whether the parties to the marriage are of the same or different sex (DRL § 10-a). New York defines and declares void "incestuous" and "bigamous" marriages (DRL §§ 5, 6). Marriages in which either party is under the age of 17 are prohibited (DRL 15-a), and a person who is between the age of 17 and 18 may obtain a marriage license with the written consent of the parents and the written approval of a Supreme Court justice or judge of the Family Court (DRL 15). Marriages where either party lacks mental capacity or physical capacity, or consents to marriage due to force, duress or fraud, are also voidable (DRL § 7). 2 100% Pass Guarantee Katelyn Whitman, All Rights New York does not permit common-law marriages; however, as a matter of comity, it will recognize out-of-state marriages (domestic and foreign) and common-law marriages if validly entered under the laws of another state (Mott v Duncan Petroleum Trans., 51 NY2d 289 [1980]). There are two categories of exception: (1) marriages prohibited by positive law in New York, and (2) marriages involving incest or polygamy (Martinez v Cty. of Monroe, 50 AD3d 189, 191-92 (4th Dept [2008]). Once a marriage is recognized as valid in New York, it is valid in all respects and is terminated only by annulment, divorce or death. Getting Married: Pre-nuptial and post-nuptial contracts: DRL 236 (B) (3); GOL § 5-701 (a) (3) - Agreements made before the marriage (prenuptial) or during the marriage (post-nuptial or separation) are valid and enforceable provided they are: • In writing; • Subscribed by both parties; and 3 100% Pass Guarantee Katelyn Whitman, All Rights • Acknowledged or proven in the manner required to entitle a deed to be recorded (DRL 236 [B] [3]; see Galetta v Galetta, 21 NY3d 186 [2013]). Matrimonial Actions: Separation agreements: DRL 236 (B) (3) - Separation agreements, prenuptial contracts, post-nuptial contracts, and stipulations of settlement in an action determine the rights and obligations of each party to the other party under the Domestic Relations Law. Such agreements complying with DRL 236 (B) (3) are valid and enforceable in the same manner as an ordinary contract. Such agreements may include provisions: • Making a testamentary gift of any kind or waiver of the right of election, • Dividing separate and marital property, • Setting the amount and duration of maintenance, and • Relating to the custody, care, education and support of any child of the parties. 4 100% Pass Guarantee Katelyn Whitman, All Rights Based on the fiduciary relationship between husband and wife, such agreements are more closely scrutinized by the courts than ordinary contracts. Courts will, however, exercise their review authority sparingly, and will set aside an agreement only upon a showing of unconscionability or where the agreement is "manifestly unfair to a spouse because of the other's overreaching" (Christian v Christian, 42 NY2d 63, 72 [1977]). Matrimonial Actions: Grounds: DRL 170 - A spouse seeking divorce in New York may do so under a number of statutory grounds (see DRL 170 [1] - [7]) including the "no-fault" ground of "irretrievable breakdown of the marriage" (DRL 170 [7]). To establish this ground, one spouse need only state under oath that the relationship has broken down irretrievably for a period of at least six months prior to the commencement of an action (DRL 170 [7]). Before a divorce may be granted based on this ground, all economic issues of equitable distribution, the payment or waiver of spousal support, the payment of attorney's fees, and custody and visitation, must be resolved between the parties or determined by the court (id.). 5 100% Pass Guarantee Katelyn Whitman, All Rights Matrimonial Actions: Personal jurisdiction: CPLR 302 (b) - New York's long-arm statute permits exercise of personal jurisdiction over a non- resident defendant in any matrimonial action involving a demand for economic relief, including equitable distribution of marital property (CPLR 302 [b]). The plaintiff must be a resident or domiciliary of New York and one of the following must be met: • New York was the matrimonial domicile of the parties before their separation, • The defendant abandoned the plaintiff in New York, or • The claim for economic relief accrued under New York law. Matrimonial Actions: Subject matter jurisdiction, durational residency requirements: DRL 230 - In order to have jurisdiction over the marriage or marital res, New York requires as a prerequisite to commencement of a matrimonial action that: