Family Law Mnemonics

FAMILY LAW MNEMONICS

1) The grounds for divorce are A PAIN: A – ADULTERY (clear and convincing evidence standard, but PAIN must only be established by a fair preponderance of the evidence) P – PRISON (3+ yrs) A – ABANDONMENT (1+ yrs) I – Cruel and INHUMAN treatment N – NO-FAULT divorces

2) T.D. OMAR are matrimonial residency requirements: T – The complaint must allege that either spouse has been NY resident for a continuous TWO year period immediately preceding the commencement of the action D – Where both spouses are NY DOMICILIARIES when the action is commenced AND the matrimonial claim arose in NY (no minimum residency is required) O – The complaint must simply allege that either the P or the D has been a NY resident for ONE continuous year prior to commencement + MAR: M – The parties were MARRIED in NY A – The matrimonial cause of action AROSE in NY R – Both parties RESIDED in NY as husband and wife

3) Adultery defenses are a bunch of CRAP: C – CONDONATION (forgiveness), either expressly or by cohabiting and resuming the marital relationship when P knew of adultery (but subsequent acts of adultery will revive the forgiven past act) R – RECRIMINATION (where P’s also committing adultery) A – P has been AWARE of D’s adultery for more than 5 years before commencing the action (if P was aware of D’s adultery for more than 5 years, even though it continues to the present, P’s claim’s barred by the SOL) P – P’s PROCUREMENT or connivance of the adultery act

4) Cruel and unusual conduct requires serious misconduct that MOP and I.O.U. to continue the marriage, i.e. the conduct of the defendant endangers the MENTAL OR PHYSICAL well being of the plaintiff rendering it IMPROPER OR UNSAFE for plaintiff to continue to cohabit with the defendant

5) An abandonment divorce requires an IOU: I – A spouse’s INTENT not to return to the marital home O – The abandonment must continue for ONE year or more (a separation judgment based on abandonment can be for any time period, provided, the other 2 IOU elements exist) U – The D’s departure must be UNJUSTIFIED, and without P’s consent

6) A former spouse may tune in to WCBS2 for enforcement: W – WAGE deductions C – Court may hold spouse in CONTEMPT B – Court may require that a BOND be posted as security for future payments S – If child support (not alimony) is in arrears of 4 months or more, the court may SUSPEND the defaulting spouse’s business or recreational license S – SEQUESTRATION, which allows a court in a matrimonial action to seize and sell the spouse’s assets to satisfy child support and maintenance arrears

7) In determining whether to order a parent to pay for a child’s educational expenses the court considers ABA: A – The child’s ACADEMIC ability B – The parents’ educational BACKGROUND A – The parents’ ABILITY ($) to pay

8) Consider FLIP DADS in a motion to grant or change custody from one parent to another: F – FINANCIAL ability of parents L – LIFESTYLE of parents and any possible adverse affect on child I – How INITIAL custody was awarded P – Who has been the child’s PRIMARY caregiver (and the length of time current custody arrangement has been in effect) D – DESIRES of the children A – Parents’ AVAILABILITY, ability, and living arrangements available to raise the child D – Prior incidents of DOMESTIC violence (which must be proven to have occurred by a preponderance of the evidence) S – SIBLINGS should not be separated

9) Custodial parent can relocate if the court hears HER SOBS: H – HEALTH-RELATED concerns E – ECONOMIC necessity of the move R – The impact the move would have on the existing RELATIONSHIP between the child and non-custodial parent S – Demands of a SECOND Marriage O – Non-custodial parent’s good faith reason for OPPOSING the move B – What outcome is most likely to serve BIC S – Whether the move would STRENGTHEN and stabilize the post-divorce family and allow a fresh start

10) MA & PA can terminate custody: M – MENTAL illness or mental retardation of a parent A – A parent’s ABANDONMENT of the child (failing to contact the child for 6 consecutive months or more) P – PERMANENT neglect of the child A –Child ABUSE (severe or frequent, physical or mental)

11) Have HIP PAID SEAT, and we’ll equitably distribute marital property, considering: H – HEALTH insurance loss I – Loss of INHERITANCE P – Loss of PENSION benefits P – Separate PROPERTY holdings of each spouse A –AGE and heath of each spouse I – INCOMES of each spouse at the beginning and end of the marriage D – DURATION of the parties’ marriage *The longer the marriage, the more likely the court is to equitably divide property, whereas in short marriages, the court usually divides in accordance with each spouse’s economic contribution to the property holdings S – Marital STANDARD of living E – EARNING capacity of each spouse A – ANY other relevant factor, including either spouse’s egregious domestic violence T – TAX consequences of the property distribution to each spouse

12) A spouse’s P2IGS are separate (not marital) property: P – PROPERTY acquired by either spouse PRIOR to the marriage P – PERSONAL injury awards to one spouse during the marriage I – Property INHERITED by one spouse during the marriage G – GIFTS to one spouse only, from someone other than the other spouse S – Property purchased with one spouse’s SEPARATE property

13) DADA gives you CPLR 302(b) long arm jurisdiction in a matrimonial action: D – NY was the most recent marital DOMICILE of the parties A – The ABANDONMENT took place in NY D – The claim for support accrued under a NY DECREE or NY law A – The parties executed a separation AGREEMENT in NY

Recoupment of Marital Property Payments

Expenditure Recoupment

1. Court ordered maintenance payments 1. Not allowed.

from a prior marriage.

2. Court ordered child support payments from 2. Not allowed. a prior marraige. Mahoney-Batzman v.

Batzman, 12 N.Y.3d 415 (2009); Johnson

v. Chapman, 12 N.Y.3d 461 (2009).

3. After the marriage is dead, e.g., vacation 3. Yes, the other spouse is entitled to a

trips with a spouse’s paramour or money 50% equitable distribution credit.

spent for gambling.

DRL §236[B][5][d][11].

4. Marital property expended to pay off the 4. Yes, the other spouse is entitled to a “separate” loans of a spouse incurred prior 50% equitable distribution credit. to the marriage. Micha, 213 A.D.2d 956

(3d Dep’t 1998).

5. Marital property to pay capital gains taxes 5. Yes, the other spouse is entitled to a

or mortgage payments on a spouse’s 50% equitable distribution credit.

separate property. Carney, 202 A.D.2d

907 (3d Dep’t 1994).

Real Property – Divisible Divorce

The U.S. Supreme Court, held that ex parte (in rem) divorce decrees must be given Full Faith and Credit by New York, but only to the extent that the marital status has been adjudicated. The concept of “divisible incidents of divorce” means that an ex parte divorce having valid “MOP” in rem jurisdiction but not in personam jurisdiction over the defendant, cannot affect the defendant’s “vested economic incidents” arising out of the marital relationship (tenancies by the entirety, alimony, child support, or equitable distribution), but it can affect non-vested rights inheritance rights (right of election, intestacy, totten trust, JT, pension, life insurance, health care proxy, wills) which will be defeated by another state’s ex parte in rem divorce judgment.

PROBLEM: H and W were living in N.Y. where they owned Blackacre as tenants by the entirety (“T.E.”). The marital res is located in any state where a spouse is validly domiciled. H obtained an ex parte in rem divorce in Georgia, where he had moved and become a domiciliary. W had been personally served in New York. She had no contacts with Georgia, and she did not appear in the divorce action (she defaulted). (The Georgia court only had in rem jurisdiction over the parties’ marital res because W had no “DIAL D.C.” minimum contacts with Georgia; the Georgia court had jurisdiction over the marital status because H had become a domicile in Georgia.)

Two months after the divorce, H died. H’s estate asserted that the Georgia divorce decree converted the New York tenancy by the entirety into a tenancy in common. Does H’s estate get 1/2 of Blackacre?

ANSWER: No. An ex parte divorce decree does not affect the parties “vested economic interests” of the marriage, so W owns 100% of Blackacre.

Now assume W died after H’s Georgia divorce. H would be estopped from claiming the T.E. survivorship right in the N.Y. realty, since H unilaterally terminated the marriage in Georgia.

Now assume that no one died, but H came back to New York after obtaining the Georgia ex parte divorce decree. H could commence a New York proceeding to have the parties’ marital property equitably divided.

Now assume that W appeared in the Georgia court action and did not raise any equitable distribution issues. Neither she nor H could come back to N.Y. to have equitable distribution decided because they had a full and fair opportunity to litigate marital property rights (res judicata).

Remember that in New York (not Multistate), if a separation judgment is granted, then even though it does not dissolve the marriage, it nevertheless sufficiently alters the marital relationship so that it converts a T.E. to a tenancy in common.