General Outline of Matrimonial and Family Laws in New York State

Getting Married

 

Limitations on who may marry: A person with legal capacity may get married by getting a license and having a marital ceremony.

 

Legal capacity:

 

18 and up: A person has legal capacity to marry. Person trying to get married before his legal age will make the marriage voidable.

 

Over 16, under 18 (16-18): Need consent of both parents.

 

Over 14, under 16 (14-16): Need consent of both parents and a judge.

 

License: Parties need capacity to obtain a license.

 

Failure to obtain a license does not make marriage void.

 

Marriage must occur at least 24 hours after but 60 days before a license is issued.

 

Marital ceremony: Marital ceremony can be done in one of the following ways.

 

Ceremonial marriage: No specific words necessary if done by clergy or magistrate.

 

Contractual marriage:

License and written contract signed by 2 parties who are in different places.

 

Need 2 witnesses, states residence of parties and witnesses, date or place of marriage, and acknowledged before a judge.

 

Marriage at sea: Recognized if valid under law of the ship owner’s domicile.

 

Recognition of common law marriage and same sex marriage:

 

Common law marriage: New York State does not recognize common law marriage, but it is valid if it was recognized in another state and the couple moves to New York State.

 

Same sex marriage is legal in New York State.

 

Conflicts of law:

 

Out-of-state and foreign marriages:

 

If valid where contracted, then valid in New York State.

 

Exception: Violate strong prohibitive law of New York State.

 

Divorce:

 

Out-of-state:

 

Bilateral:

 

Valid in New York State

 

No collateral attack allowed: Res judicata as to all issues that could have been raised.

 

Ex parte:

 

Prima facie valid in New York State if Defendant was served with process.

 

Collateral attack allowed.

 

Non-party can prove spouse was not domiciled in forum state.

 

Foreign:

 

Bilateral: New York State will recognize under comity.

 

Ex parte: Not valid.

 

Antenuptual and postnuptual contracts:

 

Antenuptual contracts:

 

Co-habitants: People living together, having a relationship.

 

New York State will enforce express agreements between unmarried cohabitants concerning financial arrangements and property provided the sole consideration is not sex.

 

New York State will not imply an agreement. There has to be an express agreement.

 

Engaged couple: Contract in contemplation of marriage can deal with any issues. To be valid and enforceable, the couple must subsequently get married.

 

Antenuptial agreement:

 

Scope: Anything the couple chooses to address, which is typically economic matters.

 

Conditions of validity:

 

In writing.

 

Signed by both parties.

 

Voluntary.

 

Not:

 

Unconscionable: Waiver of all economic support may be valid, but cannot leave a public charge.

 

Agreement on divorce.

 

Promise to engage in conduct that would be grounds for divorce.

 

Enforceability: Couple must become married to give legal effect.

 

Divorce: Does not rescind the agreement.

 

Postnuptual contracts: An agreement by the parties, made during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged in the manner required to entitle a deed to be recorded.

 

Filiation Proceedings

 

Presumption of legitimacy:

 

Non-marital child: Child conceived by and born to parents who never marry has a presumption of legitimacy.

 

Rights:

 

Inheritance from both parents.

 

Sue for wrongful death.

 

Financial or economic support from both parents.

 

Establishing paternity:

 

Purpose of proceeding: Impose duty of economic support. Non-martial child is entitled to every legal benefit to being a child of the Defendant, including right to inherit and support.

 

To establish status of Father, a paternity proceeding must be brought in the Family Court, anytime prior to a child’s 21st birthday.

 

Paternity proceedings can be commenced by the following parties.

 

Mother of child.

 

Child, through a guardian.

 

State.

 

Father.

 

Evidence requirement:      

    

Burden of proof: Clear and convincing evidence.

 

Blood type: Admissible only if offered by Defendant to disprove paternity.

 

DNA Test: Admissible by either party.

 

If results have larger than 95% probability level, then there is a rebuttable presumption of paternity.

 

The result that would exclude Father as a matter of medical possibility is conclusive.

 

Testimony:

 

Mother testifies to relations with Father: No corroboration needed.

 

Father offers evidence Mother had relations with other men at the time of conception: Needs corroboration.

 

Doctrine of equitable estoppel in paternity: In New York State, irrespective of biological fatherhood, a man who takes on the role of fatherhood cannot later deny his paternity.

 

Fraud and misrepresentation are not defenses in this case.

 

Mistaken avowal of fatherhood imposes equitable paternity.

 

Abuse and Neglect

 

Family offenses and child protective proceedings:

 

Child protective proceeding is a proceeding designed to help protect a child from maltreatment and safeguard the child's mental health.

 

A law guardian, an independent attorney, will be assigned to represent the child.

 

Allegations of abuse or neglect must be proved at a fact-finding hearing.

 

If the parent or guardian is found to have neglected or abused the child, the court may:

 

Enter an order of disposition suspending judgment against the parent or guardian for up to one year.

 

Release the child to the custody of his parent.

 

Place the child in the custody of a suitable person.

 

Make an order of protection, which sets forth reasonable conditions to be observed by the parent, or place the person before the court under supervision of a child protective agency.

 

At the end of the one-year placement, the child may be returned to the parent or guardian.

 

Termination of parental rights by reason of permanent neglect:

 

Venue: Family Court.

 

Proof: Clear and convincing evidence.

 

Grounds:

 

Abandonment.

 

Neglect.

 

Abuse.

 

Mental incompetence.

 

Juvenile delinquency and persons in need of supervision:

 

All juvenile delinquency cases are heard in Family Court in New York State.

 

Juvenile delinquent: A person who is between ages 7 to 16, commits an act which would be a crime if he were an adult, and is then found to be in need of supervision, treatment or confinement.

 

Juvenile offender: Children from 13 to 15 who commit serious or violent acts may be heard in Supreme Court, but may be transferred to Family Court. If found guilty, they may be subject to more serious penalties.

 

Adoption

 

Who may adopt:

 

Two married persons acting together.

 

Single person.

 

Married minor may adopt stepchildren.

 

Married, but a separated adult.

 

Who may be adopted: Any child or adult provided forming a bona fide parent-child relationship.

 

Required consents including revocation: To adopt, court must obtain consent of all necessary parties or demonstrate consent is unnecessary, then investigate prospective parents, and conduct a hearing.

 

Necessary parties:

 

Children under 18: Consent of both biological parents and/or any party having legal custody.

 

Children over 14:

 

Consent of both biological parents and/or any party having legal custody.

 

Consent of adoptee.

 

Consent unnecessary:

 

Parents formally surrendered child to state custody.

 

Parent is mentally incapacitated and unable to care for child.

 

Abandonment by parent: Parents had no contact with child for 6 months.

 

Neglect:

 

Conduct that imposes an imminent danger to the child, and Fall below minimum degree of care of a reasonable parent acting under similar circumstances.

 

Matrimonial Actions

 

Separation agreements: A private contract between separating spouses resolving issues. The most common issues are the following.

 

Property division.

 

Continuing periodic spousal support.

 

Child custody arrangements.

 

Child support: Court may alter the agreement as to the children.

 

Testamentary issues

 

Grounds and defenses: There are 5 matrimonial actions in New York State.

 

Declaration of nullity: Used when underlying marriage is legally void.

 

2 Grounds:

 

Incest: A person cannot marry a blood ancestor, blood descendants, half-blood siblings or lineals up or down one generation.

 

An uncle cannot marry his niece.

 

Can marry adopted children, first cousins, or stepchildren.

 

Bigamy: A person cannot marry a person while he is married to another.

 

Court declaration of nullity is not generally required for a marriage to be legally void, but the declaration serves as a legal proof to clarify the situation when the court is distributing property or custody.

 

Annulment: When marriage is voidable due to preexisting problems, it can be annulled. Annulment is discretionary and not automatic. When a party married without legal capacity, there is a 6-year statute of limitations.

 

5 grounds: Grounds for annulment must always be corroborated, and the default statute of limitations is 6 years.

 

Too young:

 

Age requirement:

 

The party must be 18 at the time of marriage.

 

16-18: With consent of 1 parent.

 

14-16: With consent of 1 parent and a judge.

 

Waived if: Cohabitates after 18 years old.

 

Mental Incompetence:

 

At any time during the marriage, if a party is mental incompetent, then the marriage is voidable.

Waived if stay in marriage after spouse is no longer incompetent.

 

5 years of incurable insanity: After marriage is underway. No statute of limitations because it is incurable.

 

Duress: If a party is made to marry under duress, then the marriage is voidable. There is no statute of limitations for this ground.

 

Fraud: If 1 party lies during courtship about something that is the essence of the marriage, spouse has grounds for annulment.

 

Common fraud issues:

 

Misrepresentation concerning:

 

Religion.

 

Sex or procreation: Ability or desire to have kids, number of kids wanted, lying about being pregnant, sex orientation, and sex agenda.

 

Statute of limitations: 3 years from the time of discovery of the fraud.

 

Money, wealth, social status: Not important enough for annulment

 

Physical Incapacity: Incurable physical condition that prevents safe sexual intercourse.

 

Must be physical or medical, and not temporary.

 

Does not refer to ability to have kids

 

Statute of limitations: 5 years limit from date of marriage.

 

Defense: Cohabitation after learning of the problem.

 

Legal separation: Orders spouses to live apart and adjudicates property without terminating a marriage. No jury is involved in legal separation.

 

Reasons for legal separation instead of divorce:

 

Religious: Some religions do not allow divorce.

 

Entitlement to economic rights: Inheritance, pension, disability, or other benefits may be kept by staying married.

Hopes for reconciliation.

 

Divorce and legal separation both have 5 grounds, but they share the first 4 grounds.

Cruel and inhuman treatment:

 

Subjective standard: Conduct that endangers physical or mental well-being of Plaintiff such that it is unsafe or improper to cohabit.

 

Mental abuse: Continuous and systematic psychological degradation, often with third party present.

If sever, 1 single event may be enough.

 

Depends on length of marriage.

 

Physical abuse: Unreasonable sexual demands.

 

Cohabitation after abuse: Court may consider this factor to show that abuse is not inhumane, but it is not an absolute defense.

 

Abandonment:

 

Defendant spouse must abandon marriage under the following circumstances.

 

Without justification: If left due to abuse, then it is not abandonment.

 

Without consent of other spouse.

 

Without intent to return.

 

Timing:

 

Divorce: Must be for period of 1 year.

 

Separation: No time requirement, just intent.

 

Constructive abandonment: Mental separation from spouse (e.g. locking out or refusing reasonable sexual intimacy).

 

Adultery: Act of voluntary sex or deviant sex (e.g. oral sex) with a person other than his spouse during marriage.

 

Four defenses:

 

Recrimination: Defendant proves that Plaintiff was also adulterous.

 

Condonation: After finding out, Plaintiff forgives spouse and resumes cohabitation.

 

Connivance: Entrapment with proof that Plaintiff hired someone to seduce Defendant.

 

Statute of Limitations: 5 years from the time of discovery.

 

Procedural and evidentiary rules:

 

All pleadings must be verified, except for Defendant’s answer.

 

Spouses in proceedings alleging adultery can only testify to:

 

Prove the existence of marriage.

 

Disprove adultery: Defendant testifies.

 

Disprove a defense raised by other spouse: Plaintiff testifies.

 

For adultery, no evidence is allowed from Plaintiff; proof must come from elsewhere.

 

Third party.

 

Circumstantial evidence: Proven by opportunity and disposition.

 

Testimony of prostitute and private investigators requires corroboration.

 

3 Years of consecutive imprisonment.

 

Failure of support:

 

Failure of support is only a valid ground for legal separation.

 

If there is inadequate or no support, court can order support.

 

Divorce: Termination of the marriage. Jury may be involved in this proceeding.

 

No-fault divorce: Until 2010, New York State recognized divorces only upon fault-based criteria. New York State Assembly, however, passed the No-Fault Divorce bill on Thursday, July 1, 2010, and the governor has signed it into law. A no-fault divorce occurs where one party asserts a successful claim for divorce simply because their commitment to the marriage has ended (e.g. irreconcilable differences).

 

There are 5 grounds for divorce; the first 4 grounds are the same with legal separation.

 

Cruel and inhuman treatment.

 

Abandonment: Must be for period of 1 year.

 

Adultery

 

3 Years of consecutive imprisonment.

 

Conversion divorce:

 

Conversion divorce is only a valid ground for divorce.

 

It is available if couple has:

 

Separated according to grounds above and obtained a decree of separation, or Separated according to agreement and have lived apart for more than 1 year.

 

 

It requires consent of both parties: If 1 party refuses to go along, then they cannot get divorce unless one has fault.

 

Parties need a separation agreement: All of the following have to be met.

 

Freely made,

 

In writing,

 

Acknowledged or notarized,

 

Filed in county court where divorce is sought prior to seeking divorce,

Cannot be unconscionable.

 

Parties need to live apart: Cannot have sex with intent to reconcile. Doing so would rescind a separation agreement, but not a divorce.

 

Statute of limitations: Unless on the grounds of adultery or abandonment, there is a five-year statute of limitations from time the grounds arose.

 

Dissolution: Proceeding when a spouse is believed to be dead because he disappears and is missing without news for 5 years. Proceeding requires certain evidence:

 

Diligent search: For spouse that revealed no evidence of whereabouts.

 

Publish a request: For spouse’s return, for 3 consecutive weeks in English-speaking paper.

 

Residency: For New York State courts to get involved, must have lived in New York State for more than 1 year, or New York State was matrimonial domicile at time of disappearance.

 

Jurisdiction over defendant:

 

Supreme Court has subject matter jurisdiction over all matrimonial actions but may refer issues of support, custody or visitation to the Family Court.

 

Supreme Court must have personal jurisdiction over Defendant when giving out collateral orders, which is an order that involves money such as child support and alimony.

 

Personal jurisdiction over defendant can be obtained through any basis under Civil Practice Law and Rules.

Matrimonial Long-Arm Statute: Plaintiff is resident of New York State, long-arm jurisdiction can be acquired over Defendant for monetary support if:

 

New York State was matrimonial domicile of Plaintiff and Defendant prior to their separation, or

Defendant abandoned Plaintiff in New York State, or

 

Defendant’s monetary obligation accrued under an agreement executed in New York State, or

Defendant’s monetary obligation accrued under the laws of New York State.

 

Durational residency requirements: To bring a matrimonial suit in New York State, at least one spouse must be domiciled in New York State.

 

If both parties are New York State residents at the time the action is commenced, and the grounds for the matrimonial action arose in New York State, then no prior residence is required.

 

If either party has been a New York State resident for a continuous period of at least 1 year immediately prior to the action and New York State has a prior link to the marriage.

 

Prior links:

 

Marriage took place in New York State.

 

New York State matrimonial domicile at some point.

 

If grounds for action arose in New York State.

 

If either party has been a New York State resident for a continuous period of at least 2 years immediately prior to the action: 2-year residency by itself is sufficient with no need to show any other link.

 

Pleadings and service of process:

 

Pleadings must be verified unless the case involves adultery.

 

Service of process needs to be satisfied with personal delivery, unless court order allows another method.

Mediation and other alternative means of dispute resolution:

 

New York State Supreme Court has Alternative Disputes Program.

 

Family courts refer litigants to community dispute resolution centers and other agencies to obtain this assistance.

The agreement reached outside of court through this program can be approved by court and be enforced like a court order.

 

Mediators must complete at least 6 hours of in-service training each year and must conduct at least three mediation sessions per year to remain certified by their local center.

 

Child Custody

 

Best interest of child standard:

 

Factor:

 

No gender bias.

 

Child over 12:

 

Consider wishes of child

 

Judge can interview child in camera and take unsworn testimony, but must make a record so it is reviewable on appeal.

Health of parents.

 

New companions.

 

Financial condition of parties.

 

Family contacts.

 

History of domestic violence, drug abuse, and criminal activity.

 

Non-parent petition for custody.

 

Strong presumption that best interest of child is with parent, so the parent usually gets the custody.

 

Exception: Non-parent proves non-fitness or extraordinary circumstances for the children to be with the parent.

 

Example: Grandparents can prove extraordinary circumstances if child has lived with grandparents for 2 years.

 

Visitation rights of parents and others:

 

Parent who loses custody has right to visitation and almost never loses.

 

De facto parent not recognized:

 

Example: Homosexual parents, non-adopting parent or non-biological parents do not have visitation rights.

Grandparents:

 

May petition for visitation rights, however, parents have due process right to raise kids as they see fit.

Parents can veto grandparent visitation order.

 

Best interest of child standard should be used in any case involving children.

 

 

Types of custodial arrangements:

 

Rule: Determination made based on best interests of child.

 

Physical Custody: Where the child will live.

 

Legal custody: Who gets to make decisions regarding the child.

 

Joint or exclusive custody.

 

Enforcement:

 

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA):

 

Home state has the continuing exclusive jurisdiction. All states must defer to orders entered by the home state of the child.

 

Home State Jurisdictional Test: Home state is the state in which child has lived with a parent for at least 6 consecutive months immediately before the commencement of the proceeding, disregarding temporary absences.

 

Federal Statute: Parental Kidnapping Prevention Act (PKPA).

 

Out-of-state custody orders are given full faith and credit.

 

A state may not assume jurisdiction under best interests standard if another state is the child’s home state

Modification of custody:

 

Parents may agree to modify the custody or visitation terms. If after the agreement is made, and one party later reneges on the agreement, the other party can only enforce it.

 

Court's approval is based on the substantial change in circumstances:

 

Geographic move: A custodial parent’s move may disrupt the stability of the child's life, which may justify the modification of a custody or visitation order.

 

Change in lifestyle: Changes in custody or visitation orders may be obtained if a parent's lifestyle threatens or harms the child.

 

Working late at night and leaving a young kid at home.

 

Using drugs or alcohols.

 

Equitable Distribution

 

Separate property:

 

Assets owned prior to the marriage.

 

Any bequests of gifts that spouse received in his sole name during the marriage. Joint gifts are marital assets.

Personal injury compensation from tort suit.

 

Anything agreed to be separate property in writing.

 

Appreciation in value of individual property unless attributable to active efforts of other spouse, including the other spouse being a homemaker or parent.

 

Anything acquired after separation agreement or filing of divorce complaint.

 

Marital property including pension and retirement benefits:

 

Definition:

 

Professional licenses and educational degrees obtained during marriage, which will be reduced to some economic value.

 

Stock, property, option plans, retirement benefits, and vested pension rights.

 

These properties are only marital property to the extent they have been accrued during the marriage.

 

Pension rights vested after the divorce is separate property.

 

Salary or bonus earned during marriage.

 

Equitable distribution: Equitable Distribution is the fair division of marital assets between husband and wife after the marriage has ended.

 

Husband and wife keep their separate properties and the marital assets are divided equitably. Court can consider any factor it deems just and appropriate, including duration and earnings, but not marital fault.

 

How court can divide the properties:

 

In kind payment: The goods and properties will be distributed.

 

Lump sum payment: Court order assets sold and distribute in cash.

 

If professional degrees are considered in maintenance, then it cannot be considered in equitable distribution, and vice versa.

 

 

 

Support

 

Spousal maintenance (alimony): Court awards maintenance based strictly on needs of the party petitioning; can be addressed in Separation Agreement, otherwise the court decides.

 

May have temporary maintenance when the action is pending.

 

Test: Based on the needs of the recipient-spouse.

 

Factors:

 

Any factor that Court deems relevant:

 

Which party is more at fault?

 

Health.

 

Age.

 

Earning capacity.

 

Sole custody of children.

 

Duration of marriage.

 

Standard of living during marriage.

 

Any evidence of overreaching in a Separation Agreement will be given close scrutiny.

 

Child Support Standards Act:

 

Biological parent must support child through age 21, or longer under special circumstances.

Special circumstances include academic ability and financial ability.

 

Support is conditioned on obedience of reasonable demands of parents.

 

Court order for support:

 

Filiation proceeding.

 

Petition for support by minor child.

 

Divorce or annulment.

 

Calculation: Statutory guidelines are based on parental income and number of children.

 

Modification and enforcement of awards and agreements:

 

Modifications:

 

To modify child support, the party must show change in circumstances: In New York State, if one parent's income has either gone up or down by at least 25%, this is considered a big enough change to require a change in the support order.

Even with a Separation Agreement, the party asking for modification must show extreme hardship.

Enforcement: Methods of enforcement of maintenance.

 

Seize assets of obligated spouse and sell, use proceeds to pay.

 

Garnish wages.

 

Revoke drivers’ license.

 

Revoke professional license.

 

Contempt of court.

 

Counsel fees: May be awarded in an action to compel support.

 

Termination:

 

Court can specify the termination.

 

Death of either party: Parties by contract can provide for support beyond death. The suit can be brought against the estate to enforce such contract.

 

Recipient remarries or cohabitates as if married

 

Uniform Interstate Family Support Act:

 

Court that entered original judgment has continuing exclusive jurisdiction.

 

Direct enforcement of out-of-state support orders:

 

Mail to employer: Employer is obligated to garnish support from paycheck.

 

Mail to Court in state where obligor resides: Court will use own process and attach property to satisfy the order.

 

Full Faith and Credit for Child Support Orders Act (Federal): Requires every state to enter Full Faith and Credit, so long as notice and opportunity to be heard.

Contact Us

Managing Attorney

Angel A. Castro, III, Esq.

60 Broad street

Suite 2426
New York, NY

10004 

 

 

Phone: (646) 234-3177
Fax: (212) 731-0217

 

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Serving the New York Supreme Courts in Manhattan, the Bronx, Brooklyn, Queens, Westchester, and Onondaga Counties, as well as the Appellate Division First, Second, Third, & Fourth Departments for Complex Litigation, Appeals, & Negotiation.

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