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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 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 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 Ps also committing adultery) A P has been AWARE of Ds adultery for more than 5 years before commencing the action (if P was aware of Ds adultery for more than 5 years, even though it continues to the present, Ps claims barred by the SOL) P Ps PROCUREMENT or connivance of the adultery act 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

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2011 Pieper Bar Review

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An abandonment divorce requires an IOU: I A spouses 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 Ds departure must be UNJUSTIFIED, and without Ps consent A former spouse may tune in to WCBS2 PI2N 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 spouses business or recreational license S SEQUESTRATION, which allows a court in a matrimonial action to seize and sell the spouses assets to satisfy child support and maintenance arrears P PASSPORT seizure or denial where child support arrears exceed $2,500 I Federal and state INCOME tax refunds can be withheld and used by the State to satisfy child support I Financial INSTITUTION data match N Reporting NEWLY-HIRED employees In determining whether to order a parent to pay for a childs educational expenses the court considers ABA: A The childs ACADEMIC ability B The parents educational BACKGROUND A The parents ABILITY ($) to pay Consider FLIP DADS2 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 childs 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 SEXUAL behavior or sexual preference of a parent is relevant only if a child may be adversely affected S SIBLINGS should not be separated C.I.A.S. modify child support arrangements: C Increase in the COST of living I Loss of INCOME or assets by the custodial parent A Additional ACTIVITIES of the growing children, requiring extra funding S SUBSTANTIAL increase in the finances of the non-custodial parent Page B

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2011 Pieper Bar Review

10) 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 parents 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 11) MA & PA can terminate custody: M MENTAL illness or mental retardation of a parent A A parents 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) 12) Have HIP PAID SEAT, and well 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 spouses economic contribution to the property holdings S Marital STANDARD of living E EARNING capacity of each spouse A ANY other relevant factor, including either spouses egregious domestic violence T TAX consequences of the property distribution to each spouse 13) A spouses 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 spouses SEPARATE property 14) 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

2011 Pieper Bar Review

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FAMILY LAW Recoupment of Marital Property Payments


Expendature 1. Court ordered maintenance payments from a prior marriage.
Recoupment

1. Not allowed.

2. Court ordered child support payments from a prior marraige. Mahoney-Batzman v. Batzman, 12 N.Y.3d 415 (2009); Johnson v. Chapman, 12 N.Y.3d 461 (2009).

2. Not allowed.

3. After the marriage is dead, e.g., vacation trips with a spouses paramour or money spent for gambling. DRL 236[B][5][d][11].

3. Yes, the other spouse is entitled to a 50% equitable distribution credit.

4. Marital property expended to pay off the separate loans of a spouse incurred prior to the marriage. Micha 213 A.D.2d 956 (3d Dept 1998).

4. Yes, the other spouse is entitled to a 50% equitable distribution credit.

5. Marital property to pay capital gains taxes or mortgage payments on a spouses separate property. Carney 202 A.D.2d 907 (3d Dept 1994).

5. Yes, the other spouse is entitled to a 50% equitable distribution credit.

2011 Pieper Bar Review

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