Matters that precede marriage, the process of getting married and termination of marriage

Question 1

Unmarried co-inhabitant agreements

Answer 1

express agreements dealing with incidents of your their relationship between unmarried persons living together is enforceable

exception- express agreement not enforceable if any part of the cited consideration is sexual relations

NY will not imply a K between these people

Question 2

Prenuptual agreements- requirements

Answer 2

(1) in writing signed by both and acknowledged; AND

(2) must have actually gotten married.

Question 3

Prenuptual agreements- defenses

Answer 3

Fraud, Duress and Unconscionability

Duress factors: look to see if only one had counsel, business experience and if agreement waived court determination of economic issues

Unconscionability:

• alimony: (1) fair and reasonable at time agreement was made; and (2) not unconscinable at time of divorce
• non-alimony agreements: not unconscionable when agreement was made

Question 4

Non-martial children- rights

Answer 4

same rights as marital children

to enforce, however, need to identify father by:

• acknowledgement of paternity (man holds himself out as father and mother agrees)
• Filiation proceeding- brought in family court- filed before child turns 21- can be commenced by mother, child through guardian, state of NY, or man insisting he is father but mother denies

Question 5

Non-marital children- equitable estoppel

Answer 5

a man who acted as a father and has represented himself as such and established a relationship with child and that child has detrimentally relied on such may be estopped from denying paterity

mother can be estoppel as well if she acquiesced in development of relationship between the child and the alleged father

Question 6

process of getting married

Answer 6

only way- ceremonial marriage

Reqs:

(1) need license (purpose is to determine that parties have capacity to marry)
(2) need ceremony (a solemn declaration before an officiant and a witness)

Question 7

Termination of Marriage- causes of action

Answer 7

1- declaration of nullity
2- annulment
3- action for legal separation
4- divorce
5- dissolution

Question 8

Declaration of Nullity

Answer 8

couple lacked capacity to marry => marriage VOID

grounds:

(1) bigamy
(2) incest- can’t marry ancestors, descendants, siblings and relatives up or down one generation (also a crime to enter an incestuous relationship)

Question 9

Annulment

Answer 9

lack of capacity but grounds make marriage VOIDABLE (not void)

Grounds:
(1) nonage (must be 18 to marry; 16 or 17= both parents can consent; 14 or 15= both parents consent + court approval) (waived if continue to cohabit after 18th birthday)

(2) mental incapacity at time of marriage (waived if continue to cohabit after your get better (lucid); however, developmental disability cannot be cured (brought by guardian)
(3) duress (under threat of physical violence) (waived by staying in marriage ad cohabiting after threat of violence ceases)
(4) Fraud (misrepresentation or concealment that goes to an ESSENTIAL ASPECT of the marriage by one party prior to the marriage) (ex- fraud relating to religion, procreation or medical risk of having children, lying about husband being father of child in womb, major misrepresentations about sexual history, BUT NEVER lying about money or social status)
(5) Physical incapacity (incurable physical inability to engage in safe normal sexual intercourse (can’t consummate) (ground can only come up if couple deferred sex till after marriage) (SOL is 5 years after date of marriage) (no jury trial)
(6) incurable insanity arising after date of marriage (3 court appointed physicians must agree on the diagnoses)

Question 10

Action for legal separation

Answer 10

Does not terminate marriage
court permission to live apart but decides other matters such as money and child custody
can be temporary or permanent

grounds:
(1) cruel and inhuman treatment (physical or mental)

(2) abandonment (no SOL b/c its continuous) (voluntary departure from one spouse, without consent, without justification) (constructive abandonment- doesn’t leave home but refusal to have sex or interact)
(3) adultery (voluntary or devious sex with someone else besides your spouse during your marriage) (4 affirmative defenses: a- condonation (waiver), b- knivance (entrapment), c- recrimination (unclean hands), d- SOL (5 years after discovery))
(4) 3 consecutive years imprisoned
(5) failure to support

Question 11

Divorce

Answer 11

Grounds for divorce:

(1) cruel and inhuman treatment
(2) abandonment (in divorce, must be for at least 1 year)
(3) adultery
(4) 3 consecutive years imprisoned

(5) conversion (couple must first separate until valid agreement and live apart for 1 year then can conert) (agreement is rescinded if have sex with spouse with intent to reconcile after agreement is made, except for decree) (material breach of separation agreement prevents conversion (breach of payments))
(6) no fault (irretrievable breakdown of the marriage for a period of at least 6 months, provided that one party has so stated under oath)

Question 12

Dissolution

Answer 12

Spouse has been missing for 5 years

Reqs:

(1) diligent search
(2) publish request that spouse return for 3 consecutive weeks in an english language newspaper
(3) P must have lived in NY for 1 year or NY was matrimonial domicile

Question 13

Automatic orders in filing of termination of marriage

Answer 13

forbid sale of concealment of assets
forbid incurring of unusual debts
prevent any change in insurance coverage

parties are required to make full financial disclosure in proceedings