Premarital relationships

Question 1

Are Ks b/t unmarried co-habitants enforceable?

Answer 1

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

Question 2

What are the reqs for a valid premarital (prenuptial) agmt?

Answer 2

To be valid, a premarital (prenuptial) agmt MUST…

1) 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
2) Be in writing, signed by both parties & acknowledged (SOF)

NOTE: prenups are ONLY enforceable if couple gets married(no marriage = discharge)

Question 3

What is a non-marital child AND his rights?

Answer 3

“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

Question 4

What is a filiation proceeding?

Answer 4

Filiation 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.

Question 5

What is paternity by estoppel?

Answer 5

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”)