Matters that Precede Marriage and the Process of Getting Married

Question 1

Under the old view, were contracts regarding incidents of the relationship between unmarried, co-habiting adults enforceable?

Answer 1

No. Sin!

Question 2

Today, what must co-habiting adults do to have an enforceable agreement?

Answer 2

They must make an express agreement that is based on anything but sex (prostitution is illegal).

Question 3

Will NY ever imply a contract between unmarried people?

Answer 3

No, never.

Question 4

What are the formal requirements for an enforceable pre-marital agreement?

Answer 4

1. Statute of Frauds: must be in writing signed by both and notarized
2. Couple ended up actually marrying
3. The agreement was voluntary and knowing: no fraud or duress, no unconscionability at the time the pre-marital agreement was made.

Question 5

Is there a limit to the topical scope of a pre-marital agreement?

Answer 5

There is no limit.

Question 6

What are the requirements to have a valid provision regarding alimony in a pre-marital agreement?

Answer 6

1. the terms were fair and reasonable at the time the agreement was made,
2. and the agreement is not unconscionable at the time of divorce.

Question 7

How is a non-marital child different than a marital child?

Answer 7

The only difference is that a non-marital child has to identify his or her father.
Both can inherit from both parents, sue for wrongful death, get government benefits, and get child support from both parents.

Question 8

How can a non-marital child identify his or her father?

Answer 8

By acknowledgement of paternity or a filiation proceeding in Family Court.

Question 9

Who can bring a filiation proceeding?

Answer 9

• mother or child, acting through a guardian, or NYS

- putative father who wants to enforce his rights

Question 10

When must the filiation proceeding be filed in order to proceed?

Answer 10

Before the child turns 21.

Question 11

How does the family court determine filiation?

Answer 11

DNA testing or by estoppel.

Question 12

What is equitable estoppel in the family law context?

Answer 12

A man who has acted as a child’s father and held himself out as such is estopped from denying paternity if the child has justifiably and detrimentally relied on those representations.

A mother can also be estopped from denying paternity if she acquiesced in the development of the close relationship between the man and the child.

Question 13

What are the two requirements of getting married in NY?

Answer 13

1. License

2. Ceremony

Question 14

What is the purpose of requiring the license?

Answer 14

To make sure you have capacity to get married.

Question 15

What are the requirements for capacity to marry?

Answer 15

• you are of sound mind
• of suitable age (18+)

gender is irrelevant to capacity in NY

Question 16

What are the three requirements for a marriage ceremony in NY?

Answer 16

1. officiant
2. witness
3. solemn declaration

Question 17

What are the requirements for the officiant in a marriage ceremony in NY?

Answer 17

Officiant is a member of the clergy or a civil officer empowered to administer an oath.

Question 18

Can an officiant also be the witness?

Answer 18

No - there must be an officiant and a separate person to act as the witness.

Question 19

What are the requirements for a solemn declaration?

Answer 19

You just have to undertake, seriously to enter into a marriage. There are no prescribed words you have to say.

Question 20

Are common law marriages recognized in NY?

Answer 20

No, but a common law marriage is portable to NY if it was recognized in another state where the couple achieved the common law status.