Premarital relationships Flashcards
Are Ks b/t unmarried co-habitants enforceable?
Ks between co-habitants who have no intention of getting married are enforceable EXCEPTIONS: If part of the consideration is sex→not enforceable (prostitution is illegal) In absence of express K, no implied Ks between unmarried co-habitants Ex - “should we split up, one promises to pay the other a stream of income”
What are the reqs for a valid premarital (prenuptial) agmt?
To be valid, a premarital (prenuptial) agmt MUST… Be freely made without duress or fraud or unconscionable Re: alimony prvns →(1) must be fair/reasonable when the agmt is made; AND (2) not unconscionable at the time of divorce Be in writing, signed by both parties & acknowledged (SOF) NOT agree in advance to get divorced or engage in conduct that creates grounds for divorce NOTE: prenups are ONLY enforceable if couple gets married(no marriage = discharge
What is a non-marital child AND his rights?
“Non-marital child” – child conceived by and born to parents who never married If parents marry 2 years after child born, child is no longer non-marital Child’s status as a marital child is unaffected by the fact that parent’s marriage is void, voidable, annulled or judicially declared void For some suits, must determine paternity– if married, strong presumption that mother’s husband is the father, but can have filiation proceeding (brought in family ct) to determine RIGHTS OF NON-MARITAL CHILDREN Have identical rights to marital children… can inherit from natural parents can sue for wrongful death, entitled to (govt.) benefit programs, entitled to economic support from both parents
What is a filiation proceeding?
Filitation proceedings are used to est paternity PROCEDURE Family Court has exclusive jx Brought in county where mom, alleged dad or child resides Claim brought by mother, child through guardian, OR state (or father if mother denies paternity) Can be litigated at any time prior to child’s 21st birthday PROOF OF PATERNITY Clear & Convincing evidence needed Mother’s testimony that she had sex w/ ∆ need NOT be corroborated BUT if ∆ offers evidence of sexual access b/t mother & other men, must be corroborated. DNA shows ≥ 95% of paternity → rebuttable presumption that ∆ is dad, which shifts burden of proof to ∆ If paternity is established (or not rebutted)→ will give rise to liability for support of the child.
What is paternity by estoppel?
When a ct declares paternity IRRESPECTIVE of biological fatherhood, if it’s in the BEST INTERESTS OF THE CHILD (BIC) If man acts like father based on lie of mother, he’s is estopped from denying parenthood/support later on,if child has detrimentally relied on this support Mom can also be estopped from trying to take away rights from man who has been held out to be father (she “acquiesced”)
