barbri_outline_-_ny_(2005)_-_domestic_relations - DOMESTIC...

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Domestic Relations 1 D OMESTIC R ELATIONS I. Courtship A. Before Marriage 1. Prenuptial (Antenuptial) Agreements a. Definition – made by people who are engaged to be married (agreements in contemplation of marriage) b. Enforceable , provided: (i) Express agreement NY will not find an implied K – in California, there’s something called ‘palimony,’ but we don’t have that here (ii) Consideration other than sex (e.g., if you take care of the children, I’ll pay you 10K a month for the rest of your life), because prostitution is illegal c. Content – can address any topic that the people want it to address (i) Usually they address economic issues in the event of a subsequent divorce, (ii) Address children, family chores (e.g. inheritance rights, distribution of property, maintenance, child care, custody, & support) d. Requirements (i) Freely made – no duress, just like any K (ii) Must be in writing, signed & acknowledged – because of the statute of frauds (iii) Can NOT agree to: (a) A divorce (e.g. “in 3 years, H promises to divorce W”) – that’s void as against public policy (b) Cannot agree to commit acts to make a grounds for divorce (I agree to commit adultery) (c) Relieve liability to support the other spouse – resulting other spouse to be a public charge (Waiver of alimony is not unconscionable, unless it results in spouse becoming a public charge) (iv) Can NOT be unconscionable – same as in any commercial K – there’s a specific test for waiver of support/alimony ( automatic unconscionability if it sets the amount of post-divorce support too low) e. If the marriage fails to take place, the parties are discharged, BUT, once marriage occurs, an otherwise valid antenuptial agreement survives (i.e., it survives a subsequent annulment or divorce) 2. Non-marital children (kids born to unmarried couples) a. Definition – children conceived or born out of wedlock are not marital children unless the parents thereafter become married (rights of marital & non-marital children are almost always same) b. Non-marital children have the same rights as marital children : (i) Non-marital child & his issue inherit from his mother & her kindred – inherit from father if he’s determined to be the father (ii) Recover damages for the wrongful death of his father or mother (iii) Workers compensation benefits – can share in his father’s WorkersComp benefits (iv) Public assistance – state can not deny welfare or public assistance (v) Same support obligations c. Filiation proceeding (paternity suit) – litigation when the identity of the father is ambiguous; litigated in the Family Court ; can litigate up to the child’s 21 st birthday (purpose for child’s rights of inheritance). Can be commenced by mother, guardian, or even father sometimes (i) Burden of Proof – clear & convincing evidence (ii) Mother’s testimony of sexual access to the father need not be corroborated (iii) D’s evidence of sexual access between mother & other men MUST be corroborated
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barbri_outline_-_ny_(2005)_-_domestic_relations - DOMESTIC...

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