1 - before marriage

Question 1

breach of the promise to marry

Answer 1

1. Rare today
2. Provides for TORT damages, including actual damages as well as loss to reputation and mental anguish. Punitive damages also available.

Question 2

gifts in contemplation of marriage

Answer 2

1. Gifts made CONDITIONAL on the subsequent marriage, like engagement rings, are null if the marriage fails to take place.
2. Consider the type of property given, the conditions attached, and the intent of the donor. (bday gift, stereo b/c of marriage?)

Question 3

Antenuptial agreements

premarital or prenuptial agreements

Answer 3

1) UPAA, 2) rights of parties, 3) property and alimony upon divorce, 4) children, 5) requirements for validity, 6) fairness, 7) state law to apply

Question 4

Prenups

UPAA

Answer 4

Many states have adopted the Uniform Premarital Agreements Act (UPAA).

Question 5

Prenups

rights of parties

Answer 5

Premarital agreements address the rights of the parties in the event of death or divorce.

Question 6

Prenups

property and alimony upon divorce

Answer 6

Parties can agree to the disposition of property at divorce and to alimony. Generally, waiver of alimony will be upheld UNLESS doing so will cause the disadvantaged spouse to become a public charge.

Question 7

Prenups

children

Answer 7

Courts cannot be bound by provisions in the premarital agreement regarding children. (must be BIOC)

Question 8

Prenups

requirements for validity

Answer 8

For a premarital agreement to be valid, it must be :
1. in writing and signed
2. entered into voluntarily (no fraud, duress, or overreaching
3. with full disclosure of assets OR proof that the party had independent knowledge.
Note: Under the UPAA, the court must determine first that the agreement was unconscionable when executed and then whether there was a fair disclosure of assets or independent knowledge (also consider waiver)

Question 9

Prenup

fairness

Answer 9

Some courts will consider general FAIRNESS and whether the parties were represented by INDEPENDENT COUNSEL.

Question 10

Prenup

state law to apply

Answer 10

Parties can agree on state law to apply.
If not, apply 1) the law of the state with the most significant relationship to the parties and the transaction OR
2) the law where the agreement was executed.