Matters That Proceed Marriage & The Process of Getting Married

Question 1

Def: Unmarried Cohabitants

Answer 1

non-married people who are living together and engaged in a sexual relationship.

(living in sin”

Question 2

Enforcement of contracts between cohabitants

Answer 2

Old View- no enforcing of Ks related to incidents of the relationship of people living in sin

Today- an EXPRESS agreement btw unmarried cohabitants (living together + sex) is enforceable, but NY will not imply a contract (it must be express.

Exception- express agreement btw cohabitants is NOT enforceable if any party of the consideration is sex. (prostitution is illegal)

Question 3

Def: Premarital Agreement

Answer 3

• contract made in anticipation of marriage (aka prenup, but premarital is the proper term of art)
• normally will deal w/ economic matters that will be operative in the contingency that the marriage fails, but nothing in law actually limits the scope to economics and the parties can K a/b anything that they want

Question 4

Challenging the Validity of a Premarital OR Postnuptial agreement

Answer 4

REQUIREMENTS

• knowing & voluntary
• in writing
• signed by both parties
• and acknowledged
• followed by marriage (if a pre-marital agreement)

FRAUD & DURESS

• did they both have independent counsel?
• what was their relative business experience?
• did the challenger know that the agreement waived judicial-determined maintenance/property?

UNCONSCIONABILITY
Provision for MAINTENANCE must satisfy a 2-part test:
1- fair & reasonable at the time the agreement is made; AND
2- fair & reasonable @ time of divorce

Any other provision must just be fair & reasonable at the time the agreement was made.

Question 5

What do you call the child of an unmarried couple?

What rights does such a child have?

How does the child enforce its rights?

Answer 5

• “Non-Marital Child” (DO NOT call bastard or illegitimate
• Rights = same rights as a marital child (SCOTUS); can inherent from both parents; can sue for wrongful death; entitled to the same gov’t benefits; entitled to child support from both parents
• In order to enforce ANY of these rights, the non-marital child must be able to ID the father. (whereas marital children get the benefit of a presumption that the mother’s husband is the dad)

Question 6

How is the father of a non-marital child identified?

• proceeding
• standing
• timing

Answer 6

• Filiation proceeding brought in family court (NY term of art for paternity suit)
• Standing = mother; child via guardian; state; putative father insisting on rights of fatherhood when mother denies he is the father
• timing = must be brought prior to child’s 21st birthday

Question 7

Equitable Estoppel in a Filiation Proceeding

Answer 7

• a man who has acted as a dad; repped himself as a day; established a relationship w/ the child, may estopped from denying paternity if that child has relied detrimentally on the mans representations
• A mother can also be estopped from commencing a filiation proceeding against Y if she has acquiesced with a father-child relationship between her child and X

Question 8

What is the only way to get married in NY?

Answer 8

Ceremonial Marriage

Question 9

What are the requirements of a ceremonial Marriage (2)

Answer 9

1- LICENSE- only real purpose of getting a license is so that a gov’t official can make sure you have the capacity to marry

2- CEREMONY

• “a solemn declaration before an officiant and a witness”
• officiant = clergy; civil officer empowered to administer an oath; ship captain at sea
• witness = someone other than the officiant
• solemn declaration = wedding vows; no “magic words;” you just have to take the vows seriously, but that doesn’t mean you can’t have a wacky/weird wedding

Question 10

Common Law Marriage in NY

Answer 10

TRICK QUESTION– NY DOES NOT ALLOW FOR COMMON LAW MARRIAGE

However, CL marriage is portable. If a couple entered into a valid CL marriage in RI, then NY will recognize it.