domestic relations/family law

marriage

legal union of a couple as spouses, which requires:

Parties are legally capable of contracting to marry

mutual consent agreement

An actual contract in the form prescribed by law

Unmarried, Not incestuous, age, license, official, ceremony, witnesses, waiting period

Requirements for marriage in NYS

marital dissolution

can be done through divorce or annulment

divorce

dissolution of a valid marriage

grounds for divroce

cruel and inhuman treatment, abandonment for one or more years, confinement of the defendant in prison for a period of three or more consecutive years, adultery, husband and wife have lived separate and apart pursuant to a written agreement of separation, or judicial degree of separation for a period of one or more years after the execution of agreement, relationship between husband and wife has broken down irretrievably for a period of a least 6 months

annulment

the dissolution of a void or voidable marriage

nonage, incapable of consenting to a marriage for want of understanding, is incapable of entering into the married state from physical cause, consent to such marriage because of force, duress, or fraud, or has been incurably mentally ill for five years or more

grounds for annulment

void marriages

incestuous marriages or bigamy

custody of children guideline

what is in the best interest of the child

which parent has been the main care giver, parenting skills, mental and physical health of parents, history of domestic violence, child’s relationship with relatives

considerations for custody of children

clear and convincing evidence

burden of proof in a child custody case

legal custody

the right and responsibility to make decisions for a child

residential/physical custody

where the child lives

joint custody

when the parents make major decision about the child together such as decisions about education, health, and religion

sole custody

only one parent has the4 right to make the major decisions

17

Child support percentages to be paid by the party that does not have physical custody: 1 child

25

Child support percentages to be paid by the party that does not have physical custody: 2 child

distribution of assets

classifies whether the property is marital or separate. it obtains an expert evaluation of marital assets if necessary and distributes marital assets according to equitable distribution factors. once it is established whether the property is marital or separate then you call an appraiser.

marital property

any property which is not within the definition of separate property and which acquired by either party during the marriage regardless of who actually owns the asset. the moment at which the property acquired by either spouse becomes marital property is the minute the i do’s are spoken, unless defined as otherwise.

separate property

any property acquired before the marriage, by bequest, devise, decent, gifts ot one spouse form anyone other than the other spouse, compensation from personal injury cases only that which constitutes punitive damages and pain and suffering, separate property acquired in exchange for separate property, appreciation of separate property will be considered separate property if the non-titled spouse did contribute toward the appreciation, and property designated as separate by a validly executed marital agreement such as a separation agreement.  

factors of equitable distribution

income and property of each party at the time of the marriage

duration of the marriage and the age and health of both parties

the loss of health insurance benefits upon dissolution of the marriage

maintainance

an award used to level the circumstances for both parties in the marriage. it is usually temporary in duration and used to stabilize the impact in a situation where there are large income disparities such as having one spouse be at home. previously called alimony and generally awarded.