Premarital Relationships

Question 1

Are contracts between unmarried co-habitants enforceable?

Answer 1

Contracts between co-habitants who have no intention of getting married are enforceable

EXCEPTIONS:

1) If part of the consideration is sex→not enforceable (prostitution is illegal)
2) In absence of express contract, no implied contracts between unmarried co-habitants

Ex - “should we split up, one promises to pay the other a stream of income”

Question 2

What are the requirements for a valid premarital (prenuptial) agreement?

Answer 2

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

Be freely made without duress or fraud or unconscionable

Re: alimony provisions →(1) must be fair/reasonable when the agreement 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)

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 court) 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 (government) benefit programs,
- entitled to economic support from both parents

Question 4

What is a filiation proceeding?

Answer 4

Filitation proceedings are used to establish paternity

PROCEDURE

- Family Court has exclusive jurisdiction
- 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 with ∆ need NOT be corroborated BUT if ∆ offers evidence of sexual access between 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 court 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 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)