Matters Preceding Marriage

Question 1

Are agreements between unmarried co-habitants enforceable?

Answer 1

Yes. BUT there must be consideration other than sex .

(e.g., “Jim to Pam $5k per year in consideration for Pam’s housekeeping”)

(Used to be unenforceable because “living in sin”)

Question 2

What are prenuptial/pre-marital agreements?

Answer 2

Agreements entered into by two people (regardless of current habitation status) before they get married

Question 3

What do prenups usually deal with?

Answer 3

Economic issues

Contingencies on what will happen to marital finances upon the end of the marriage

Question 4

Which party to a marriage will be the one challenging the validity of a pre-marital agreement? (i.e., arguing that the agreement should be set aside)

Answer 4

The less-moneyed party

Question 5

What is required for a valid, enforceable prenup?

Answer 5

1. In writing
2. Signed BY BOTH
3. Acknowledged (NY state term for notarized/corroborated by witness)

Question 6

What will void a premarital agreement?

Answer 6

Agreement made under fraud or duress (just like any contract)

Question 7

What is alimony called in NY?

Answer 7

Maintenance

Question 8

What is the two-part test for whether maintenance/alimony is acceptable in NY?

Answer 8

Any provision for alimony in a premarital K must be:

1. Fair and reasonable at the time of the agreement, AND
2. Not unconscionable at the time of divorce

Question 9

Aside from alimony/maintenance, what is the standard for the acceptability of provisions made in premarital agreements? (e.g. division of assets)

Answer 9

Enforceable as long as NOT UNCONSCIONABLE when made.

(Unlike with alimony, we don’t care about unconscionability at the time of divorce)

Question 10

What is a filiation proceeding in NY?

Where does it take place?

Answer 10

A paternity suit

Takes place in family court

Question 11

Who can commence a filiation proceeding?

When?

Answer 11

Paternity claims can be brought by:

1. Mother;
2. Child, through a guardian (guardian ad litem);
3. The father; AND
4. State of NY

Claims can be brought any time up until child’s 21st birthday

Question 12

What is the burden of proof in a filiation claim?

Answer 12

POE

Question 13

What are the four rules on DNA blood evidence in a filiation suit?

Answer 13

1. It is admissible;
2. If match is 95% or more, creates a rebuttable presumption of paternity [N.B. Rubuttal by showing: (a) No physical possibility of fathering a child (e.g., impotent), or (b) No possible way he could have fathered the child (e.g., out of the country at the time of conception)];
3. If mother testifies about sexual activity with D does NOT have to be corroborated; AND
4. If D offers evidence that mother had sex with other men, it MUST be corroborated.

Question 14

What is paternity by estoppel?

Answer 14

Court-determined paternity (or lack thereof) IRRESPECTIVE of biological paternity IF it is in the best interests of the child.

(e. g., Luke is Anakin’s bio-son, but has been raised for 18 years by Owen; Court may refuse Baru’s request to now grant paternity to Anakin because it would be disruptive to Luke)
(e. g., Courts may refuse Michael’s request to DISCLAIM Billie Jean’s son, who he thought was his and raised as his own, now that he knows the kid is not his son.)