Domestic relations Flashcards
Unmarried Cohabitants - Agreements
An express agreement between unmarried persons is enforceable.
No implied contracts.
Unmarried Cohabitants - Agreements Exception
Consideration cannot be sex.
Premarital Agreements - Scope
Unlimited scope allowed.
Premarital Agreements - Formalities
- In writing
- signed by both
- Acknowledged (SoF)
Premarital Agreements - What is the condition precedent?
Getting married
Premarital Agreements - How to show it is unenforceable?
- Fraud, duress, unconscionability (when made - EXC alimony - next slide)
- Must be voluntary and knowledgeable
- Bargaining power:
a) legal representation
b) education
c) experience
Premarital Agreements - Requirements for Alimony Provision
- Fair and reasonable at the time agreement was made; AND
2. Not unconscionable at the time of divorce
Non-marital Children Rights
Exact same rights as marital children under Equal Protection.
Filiation Proceeding Defined
What NY calls a paternity suit
Who can commence a filiation proceeding?
By the
- mother
- child through a guardian
- state of New York
- purported father (to assert rights as father)
What is the SoL for a filiation proceeding?
Before the child turns 21
Filiation Proceeding - Equitable Estoppel
A man who has represented himself as the father and established a paternal relationship may not deny his paternity if child has relied.
-this works both ways: if mother acquiesced to one father can’t claim against another
Requirements for marriage
- License
2. Ceremony
Marriage Ceremony Defined
A solemn DECLARATION by the couple in front of an OFFICIANT and a WITNESS.
“Declaration” - undertake to enter seriously into status.
“Officiant” - member of clergy / civil officer who can administer oath / captain
Marriage Ceremony - Prescribed Words
There are none.
Common Law Marriage
Not available in NY
Will NY recognize another state’s common law marriage?
Yes. “Portable”
NY Matrimonial Causes of Action
- Declaration of nullity
- Annulment
- Legal separation
- Divorce
NY Nullity Grounds
Lack of capacity to marry - bigamy or incest.
(Cousins OK - “that explains half the people you see on the subway”)
Renders marriage void. No need for official process.
NY Annulment Grounds
- One party was under 18
- Mental incapacity
- Duress
- Fraud
- Physical incapacity to have sex (not psych) (SoL - 5y after marriage)
- 5 years of incurable insanity arising AFTER the marriage.
NY Annulment - Waiver
If you continue to cohabitate after the defect then you waive the right to annulment.
Annulment Grounds - Fraud
Misrepresentation or concealment of information that goes to an essential aspect of the marriage by one party prior to the marriage (SoL - 3y after learning). - religion - fertility - sexual history - sexual proclivities (not money or property)
Legal Separation - 5 Grounds
- Cruel & inhuman treatment
- Abandonment (no SoL)
- Adultery
- 3 years of consecutive imprisonment
- Failure to support