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Will NY recognize a contract between unmarried cohabitants?
Yes. But, it will only do so, provided the consideration for that contract is something other than sex.
Will NY imply a contract b/t unmarried cohabitants where they did not have an express K?
No. No implied Ks between unmarried cohabitants in NY. NY does not have palimony.
What is an anti-nuptial agreement?
Entered into in consideration of marriage - addresses economic matters; contingency plan dealing with the prospect of an eventual divorce. * *Substitutes negotiated agreement for judicial and statutory rights.
Is there a topical limit to what an anti-nuptial agreement can contain?
No.
What are the requisites of validity for an antenuptial agreement?
1) In writing, signed by both parties, and acknowledged; 2) Free from duress; 3) Can\'t be unconscionable; 4) Can\'t agree to divorce (against public policy)
Is a waiver of your support entitlement unconscionable?
No. Unless the waiver is such an extreme waiver and the substitute provisions so stingy that the poorer spouse would become a public charge
When does the K come into effect?
Once the parties marry if it is valid - marriage is a key condition and if it doesn\'t occur, K never becomes effective. Remains valid after divorce.
What are children of unmarried people called?
Non-marital children.
What are the rights of non-marital children?
Essentially all the same rights as marital children in judicial system * *CAN inherit, sue for wrongful death of parent, claim all sorts of gov\'tl and private benefits, and are entitled to financial support from both parents.
How can you implement support obligations?
If father doesn\'t acknowledge paternity, have to litigate the issue. * *most states call it a paternity proceeding, but in NY, it is called a Filiation proceeding.
Where are filiation proceedings litigated?
Family Court.
Who can litigate?
1) Mother; 2) Non-marital child; 3) The state of NY; 4) Father
When can a filiation proceeding be begun?
Any time prior to kid\'s 21st birthday.
What is the burden of proof in a filiation proceeding?
Heightened burden of proof - requires clear and convincing evidence.
What type of evidence is admissible?
1) Mother can testify that there was sexual access by D, and her testimony need not be corroborated; 2) D can claim that the mother had sexual relations with other men, but that claim MUST be corroborated; 3) DNA evidence is admissible
Who can order DNA evidence?
Can be ordered on request of any party or on court\'s own evidence.
What is the rule with respect to DNA evidence?
If it shows greater than 95% probability that D fathered the child, that raises a presumption and shifts the burden to the father to negate presumption.
What is the only real way the father can negate that presumption?
By showing that he is infertile or that sexual access was a complete impossibility.
What is the rule for pre-marital gifts?
1) If the gift is in contemplation of marriage, you can recover it back if the marriage does not take place; 2) Other gifts are not recoverable.
What are the causes of action that used to exist, but have been abolished in NY?
Collectively, called the \"heart-balm\" causes of action: 1) Breach of promise to marry; 2) Seduction of an unmarried female; 3) Alienation of affections; 4) Criminal Conversation; 5) Jactitation of Marriage
To whom did the seduction of an unmarried female cause of action belong?
The father of the woman.
What is the alienation of affections cause of action?
Brought by married person against a stranger of the marriage who allegedly turned the spouse\'s feelings against the P, often D was in-laws or suitor of spouse)
What is criminal conversation?
Civil cause of action for adultery.
What is jactitation of marriage?
Representing yourself to be married in the larger community, to someone with whom you have no relationship.
What do you do if these come up on bar?
Just deny relief. Also mention that it is a felony to file any of these claims.
What is necessary to get married?
Capacity (it\'s a contractual relationship)
What type of capacity is required?
All of the normal K law rules PlUS special marital capacities: 1) Have to be single 2) Have to be of the opposite sex * *NOTE: not in MA, and NY hasn\'t decided issue yet - it\'s unsettled area
Assuming you have a capacity, what are the possible ways to get married?
1) Through a ceremonial marriage (most likely way); 2) Contractual license
What do you need for a ceremonial marriage?
1) License; 2) Solemnize the Relationship (ceremony or solemnization)
What are the rules with respect to licenses?
1) In NY, there\'s a 24 hour waiting period. 2) License is only good for 6)0 days; 3) License is not an essential attribute of a valid marriage - it\'s merely directory. * *If you fail to do it, it won\'t affect the validity of your marriage as long as you had capacity.
What do you need to solemnize the relationship?
1) The efficient (sp?
Who can be an efficient?
Any member of the clergy, government officers, anyone empowered to issue oaths, captain of a ship at sea.
What does the solemn declaration mean?
Basically just means vows. Just means you understand the requirements you\'re undertaking, but there\'s no required type of ceremony.
What does a contractual license require?
Each party must go before a judge and sign a written contract in the presence of that judge and a witness. * *used when the parties are in different areas.
Does NY recognize common law marriage?
No, but NY will treat a couple who entered into a common law marriage in a state where it was valid, as married in NY.
What are the consequences of being married?
1) Obligation of sexual exclusivity; 2) Duty of economic support (reciprocal duty that flows in both directions)
What is the standard of support?
Fair and reasonable. Determining what\'s fair and reasonable generally is based on the economic means of the spouse who\'s support obligation is under scrutiny.
What is the floor on support?
If there\'s a spouse in the relationship who\'s likely to become a public charge, there\'s a floor (amount of money necessary to prevent them from becoming a public charge). * *It\'s generally a means test, but in the event of an extreme need, it becomes a needs test.
What if you are not getting spousal support?
You can file a petition for separate maintenance.
What is the status of married persons with respect to all other areas?
For all other purposes, married people retain their separate identity: 1) They can hold property in their own name (no requirement that you own property by tenancy of the entirety); 2) Can have separate domiciles; 3) Can have separate surnames; 4) Can contract independently with third persons and will be solely liable on the Ks; 5) Spouses can commit torts and crimes against each other (NY has abolished the intrafamily immunity rules)
What is the exception to sole liability rule?
1) If a spouse incurs a debt for necessaries, then the other spouse can be held liable, AND 2) If one spouse is acting as an agent for the other, then under ordinary agency principals, the second spouse is liable.
What are the five causes of action relating to terminating marital status?
1) Declaration of nullity; 2) Annulment; 3) Separation action (legal claim for separation; 4) Divorce; 5) Dissolution
What is a declaration of nullity?
Ends the marriage when one of two parties lacked marital capacity, which thereby rendered the marriage totally VOID.
What are the potential grounds for declaration of nullity?
Only two: 1) Bigamy; 2) Incest
What relationships count as incest?
Only blood relatives who are: 1) Descendants; 2) Ancestors; 3) Lineal relatives up or down one generation.
Can first cousins marry?
Yes.
What is annulment?
Use it to get out of marriage when there\'s a capacity problem that makes the marriage VOIDABLE.
Can the grounds for annulment be waived?
Yes.
How is waiver found?
Waiver is usually found by evidence that the parties continued to cohabit either after learning of the problem or the capacity problem is in some way removed.
What does cohabit mean?
Term of art, means that they are living together and they\'re having sex.
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