Agreements Flashcards
(79 cards)
1
Q
What is the requirement for all prenuptial agreements entered into after October 1, 2007.
A
UPAA was enacted as of 10/1/2007 and requires that all prenuptial agreements be IN WRITING.
2
Q
What is the difference between a prenuptial agreement and post nuptial agreement?
A
A prenuptial agreement sets forth spousal obligations and rights prior to marriage; and
a postnuptial agreement defines and distributes what already exists.
3
Q
What impact does the doctrine of parens patriae have on children’s issues in prenuptial agreement?
A
Children’s issues can always changed and therefore cannot be determined in a prenuptial agreement.
4
Q
Are prenuptial agreements that address custody and child support issues conclusive?
A
No, children’s issues are always subject to review by court to assure child best interest considered.
5
Q
Can a prenuptial agreement deal with rights upon death?
A
Yes, allows parties to waive rights or interests in the event of divorce and or death.
6
Q
A prenuptial agreement provides for term of 5 years of alimony, but it does not include a specific waiver for modification of that term. Can party move to modify the duration ?
A
YES - THERE MUST BE A SPECIFIC WAIVER OF MODIFIFCATION OF ALIMONY WHICH MIGHT RISE IN THE FUTURE
7
Q
What may parties waive in a prenuptial agreement?
A
- Rights to alimony after divorce IF waiver is specific
- Right to modify alimony if waiver is express
- Rights to ED
8
Q
Can a prenuptial agreement include general waiver of rights be interpreted to include waiver of alimony?
A
No, a general waiver of rights is not enough. To waive alimony, the waiver must be clear and specific.
9
Q
Is a general waiver of ED sufficient in a prenup
A
Hahamovitch said YES - a general waiver of ED is sufficient to waive claim to enhancement of nonmarital property as a result of marital efforts
10
Q
What are death rights that can be waived in a prenup?
A
- Elective share
- Homestead
- Intestate succession
- Family Allowance
- Preference in appointment of personal rep
11
Q
What is the result of waiving homestead rights in a prenuptial agreement?
A
For purposes of constitutional restriction on devise of homestead, waiving spouse is deemed to have died before the decedent
12
Q
What rights cannot be waived in a prenuptial agreement?
A
- Temporary support.
- Temporary attorney fees incurred through FJ
- Child support, child custody and timesharing.
- Pension rights unless requirements of ERISA met:
-spouse consents to election of waiver in writing
-writing designates a nonspouse beneficiary or expressly
permits designation by participant spouse without any
requirement of further consent of his / her spouse
-writing acknowledges consent to waiver is witnessed by
plan admin or notary
-writing is made within applicable election period
13
Q
What is the exception to the prohibition on waiving temp fees in a prenup?
A
Can include a prevailing party clause for seeking to enforce or prevent a breach of the prenup (Lashkajani)
14
Q
What consideration is required in a prenuptial agreement?
A
Only the marriage itself. If the marriage does not occur, the prenuptial agreement is not valid.
15
Q
Under FL law, a prenup may be set aside for what two reasons?
A
- Direct method
- Indirect Method
16
Q
What is the direct method of setting aside a prenuptial agreement?
A
“Direct Method STEP 1”- Casto
(1) It was entered into under fraud, deceit, duress, coercion, misrepresentation or overreaching. The court evaluates the circumstances at the time of signing to determine whether the consent of the challenging party was voluntary.”
17
Q
Under the direct method, who has the burden of proof to prove fraud, deceit, duress, coercion, misrepresentation or overreaching
A
The challenging party.
18
Q
What are four examples of overreaching?
A
- party takes advantage of close confidential and trusting fiduciary like relationship and exerts emotional pressure to sign
- dominant party who acts in bad faith by misrepresenting impact of agreement and other party relies on inducements to sign
- W had agreement drawn up and gave W all assets and left H with insufficient funds to support himself and H wasn’t represented
- When dominant party is the grossly disproportionate beneficiary of the transaction there is a presumption of undue influence
19
Q
What are examples of when overreaching will not be found?
A
When the party had no lawyer.
20
Q
When is coercion or duress found?
A
When a party coerces or intimidates another to sign prenup then agreement is not voluntary.
21
Q
Can duress be established where the agreement was drafted 3 days before the wedding and executed 1 day before the wedding, W had been given only 1 day to seek her own attorney to make an independent evaluation of the agreement absent any financial disclosure, and she had to either sign the agreement or cancel the wedding
A
Yes - duress found. Hjortass, 2d DCA 1995
22
Q
Is duress found if threat to expose future husband’s s tax violations so he would sign prenuptial agreement.
A
Yes, that would not be considered voluntary.
23
Q
Wife received agreement 2 weeks before wedding, Husband told Wife about proposed terms long before the agreement was prepared, Husband told Wife that before they would get married she would have to sign prenuptial agreement, and there was testimony that even if the parties did not marry as a result of Wife’s refusal to sign agreement Husband would have continued relationship. Can Wife claim duress/coercion?
A
No duress Waton, 4th DCA 2004)
24
Q
Will threatening to not get married on its own constitute coercion?
A
No.
25
Will a claim of emotional strain at the time of signing the agreement constitute a claim of duress
No.
26
When is a prenup set aside for fraud or misrepresentation?
a) The intentional concealment or misrepresentation of a party's financial status prior to the execution of a prenuptial agreement constitutes fraud on the other party (Del Vechhio, Fla. 1962).
b) When a party to an agreement is prejudiced by the misrepresentation or fraud, he or she may attack the validity of the agreement when the other party seeks to enforce it.
c) The affirmative defense is that the agreement was procured by fraud, that the challenging spouse reasonably relied on the misrepresentation or fraudulent act and suffered prejudice so that it would be inequitable to enforce the agreement.
27
Husband's threat to inform child of Wife's affair or child from a previous marriage--is this sufficient to set aside prenup?
Yes
28
How can a spouse set aside a prenup under the indirect method?
The challenging spouse must establish that the agreement makes an unfair or unreasonable provision for that spouse, given the circumstances of the parties.
29
Once a spouse can prove that the agreement makes an unfair or unreasonable provision for that spouse, given the circumstances of the parties, what presumption arises?
A presumption arises that there was either concealment by the defending spouse or a presumed lack of knowledge by the challenging spouse of the defending spouse's finances at the time the agreement was reached
30
Once a spouse can prove that the agreement makes an unfair or unreasonable provision for that spouse and the burden shifts to the defending spouse, what must they prove assuming the Prenuptial Agreement was entered before October 1, 20-7 (pre UPAA)?
a) Defending spouse made a full, frank financial disclosure relative to the value of the marital property and the income of the parties;
or
b) The challenging spouse has a general and approximate knowledge of the character and extent of the party's assets and income.
31
What is the test with respect to the adequacy of the challenging spouse's knowledge?
Look at what the challenging spouse knew at the time of the agreement and whether the challenging spouse is prejudiced by lack of information.
32
In determining whether the agreement is fair under an indirect challenge to prenup, the court should consider:
a) The parties relative situations, including ages, health, education, financial status and experience.
b) Whether the provisions made in the agreement would enable both parties to maintain a standard of living consistent with that established during the marriage.
c) Whether the provisions for the less affluent spouse is disproportionate to the means of the more affluent spouse.
d) Compare the provisions to what each party would get without the agreement.
e) Examine property each brought into the marriage.
33
What is the general premise of full & frank disclosure
a) Actual form and manner of disclosure is not significant so long as the party provides their financial net worth and income.
b) The disclosure need only be full and fair, not minutely detailed or exact.
34
What are defenses to enforcement of prenups
1. Abandonment and Rescission where one party acts inconsistent with the existence of the agreement and the other party acquiesces in the inconsistent conduct (i.e. tearing up agreement with intent to destroy).
2. Reformation appropriate where there has been a mutual mistake in the way the instrument was drawn which does not accurately express the true intention or agreement of the parties.
3. Acceptance of the Benefits a person may not retain the benefits of a settlement while attacking its validity. However, where the person is entitled to at least the amount accepted, he/she is not stopped from claiming a greater amount.
35
What principles apply to interpretation of an prenup
1. When language of agreement is subject to more than one reasonable interpretation, Court must use the rules of contract construction to advocate a certain interpretation or application.
2. Words of a contract are to be given their plain and simple meaning, unless the context of a contract indicates that an unusual meaning was intended.
3. Where a contract is ambiguous, it should be interpreted against the interests of the party having drafted it.
36
How should court handle ambiguity in a prenup
5. Court cannot ignore overall intent of the agreement and should interpret any ambiguity so that it does not ignore the clear operative clauses of the agreement
37
Are whereas clauses in a prenup binding?
a) Prefatory recitations contained in the WHEREAS clauses are not binding, operative provisions to an otherwise unambiguous contract.
b) Operative clauses prevail over the recital clauses in the event of a discrepancy.
38
When can a court resort to recital clauses?
If the operative provisions are ambiguous, in order to ascertain the meaning of its operative provisions.
39
What law applies to a Prenuptial Agreement?
1. Law specifically set forth in agreement but if it's silent then
2. contract law applies in determining what state law will govern. Doctrine of lex loci provides the law of jurisdiction where a contract was executed controls.
THIS WAS ASKED VIA MC OR SHORT ANSWER ONCE OR TWICE
40
Is a party is challenging a prenup - must it be plead?
YES - pleading must allege the challenge as an affirmative defensive in answer if you are respondent and if the basis is fraud - must plead with specificity
If petitioner doesn't raise prenup in pdm, and R wants to enforce, raise it as an affirmative defense in answer
41
What is the UPAA
Uniform Premarital Agreement Act
42
What does UPAA apply to
All prenuptial agreements entered into after 10/1/2007 . It does not apply to Postnuptial agreements or marital settlement agreements.
43
Pre UPAA, what was the initial question under the indirect method?
Whether the agreement is unconscionable.
44
What is the big distinction under a challenge to prenup under UPAA
Under UPAA, once an agreement is shown to be unconscionable, the burden REMAINS with the challenging party to prove no disclosure and no adequacy of knowledge of finances (this is unlike pre-UPAA cases where once an agreement is shown to be unfair, the burden shifts to the other party to prove the sufficiency of disclosure).
45
What does the UPAA provide?
1. All prenuptial agreement must be in writing and signed by both parties;
2. Allows the parties to address all substantive rights in the agreement; and
3. Provides that after marriage, a premarital agreement may only be amended, revoked or abandoned by written agreement signed by both parties.
46
How does UPAA govern challenges to prenup
1. The party did not execute the agreement voluntarily.
2. The agreement was the product of fraud, duress, coercion or overreaching OR (DIRECT METHOD)
3. The agreement was unconscionable when it was executed, AND before the execution of the agreement, the challenging party:
a) Was not provided fair and reasonable disclosure of the property or financial obligations of the other party;
b) Did not voluntarily and expressly waive in writing any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
c) Did not have or reasonably could not have had an adequate knowledge of the property or financial obligations of the other party.
47
Is a postnuptial agreement required to be in writing?
In writing or read into the record.
48
When can an oral post judgment agreement be enforceable
a) An agreement entered into on the record where there was a clear understanding of its finality by the parties was an effective and enforceable settlement of pending litigation, notwithstanding that it was subject to being reduced to writing at a later time
Just need a meeting of the minds on essential elements of the deal
49
What is deemed sufficient consideration of postnuptial agreement?
Mutual promises encompassing various rights of the parties, in addition to disposing of property owned by them, have been considered sufficient consideration.
50
When are witnesses necessary to a postnup
Two witnesses are also required if the agreement provides for a conveyance of real property.
Two witnesses are also required if the agreement requires either party to make or refrain from making a will, or to devise or not to revoke a will or devise.
51
What governs challenges of a postnuptial agreement
CASTO- regardless of whether the agreement was entered into before or after 10/1/2007- UPAA does not apply to postnuptial agreements or msa's
52
What is the difference between a postnuptial agreement and an MSA for purposes of a challenge
Postnups are entered during a period of nonlitigation
MSA is reached after litigation commenced and completion of discovery
53
If an agreement is reached after litigation commenced and after discovery produced, what is a litigant prevented from doing?
Cannot them later claim lack of knowledge and 12.540 applies because the party could have done due diligence to unearth all relevant factors.
However, if party is not afforded time to do discovery then Casto may apply.
E.g. Macar v. Macar (Fla. 2001) a settlement agreement reached after the initiation of litigation are not permitted to claim lack of knowledge since they could have unearthed all relevant facts through due diligence
54
What happens if a party fails to claim fraud as a defense to a postnuptial agreement or marital settlement agreement?
Claim is waived. Fraud must be plead with specificity
55
FW made lied and said that she and daughter would remain in the marital residence so the child could grow up there & she knew it was a lie but did so to induce FH to sign and he relied on that rep and was then injured by this reliance - does this satisfy fraud?
YES
56
When is allegation of lack of financial disclosure less persuasive
After the parties have engaged in contentious litigation while each was represented by counsel.
57
Does the Casto fairness test apply to litigation agreements?
NO - the parties are not dealing at arm's length. When the parties are litigating, they are no longer in a position of trust. Therefore, the Casto indirect (unfair and unreasonable) test does not apply to litigation agreements. They are no longer dealing in arm's length and have the benefit of retaining counsel and completing full discovery.
58
What presumption exists with litigation agreements?
A presumption exists that a litigation agreement reached after discovery and just before trial was executed with full knowledge by the challenging spouse, and courts are precluded from inquiring into the reasonableness of a litigation settlement. If the parties agreed to the terms, it is presumptively and conclusively fair as a matter of law.
59
Challenges to a litigation agreement is limited to what?
Coercion, fraud or misrepresentation in discovery
60
What are grounds under 12.540 to set aside an agreement?
Court at any time on its own initiative, or on the Motion of any party.
b) Mistakes
c) Inadvertence
d) Surprise
e) Excusable neglect
f) Newly discovered evidence
g) Fraud
h) Misrepresentation or other misconduct of an adverse party
i) Void judgment or decree
j) Satisfaction or Release
k) Reversal or Vacation of a prior judgment or decree on which the judgment is based
l) Filing of a false financial affidavit (no time restraint).
61
What is the standard of review for contract interpretation?
De novo.
62
What is a latent ambiguity?
Where the language employed is clear and intelligible and suggests but a single meaning, but some extrinsic fact or extraneous evidence creates the necessity for interpretation, or a choice among two or more possible meanings
63
When is parole evidence permitted in contract interpretation
ONLY if there is a latent ambiguity in the agreement.
64
What are the effects of reconciliation or remarriage to an MSA
If parties reach a MSA and then reconcile or remarry, whether the agreement is effective in subsequent DOM action is based upon provisions of the MSA. In order to have the prior MSA withstand a reconciliation or remarriage, the provision of the Agreement should specifically state the intention.
65
What factors are required for novation?
a) The existence of a previously valid contract;
b) Agreement of all the parties to a new contract;
c) The extinguishment of the original contractual obligation; and
d) Validity of the new contract.
66
Can a party avoid enforcement of choice of law provisions
Yes but has burden to demonstrate that the foreign law contravenes public policy
67
How does a litigant apply for foreign law
judicial notice
68
What is a forum selection clause
Parties agreeing to convey personal jurisdiction upon specific forum in which to adjudicate their dispute
69
If trial is bifurcated to determine validity of prenup and court finds the prenup INVALID - can you appeal
Yes - you can appeal the non final order
70
If trial is bifurcated to determine validity of prenup and court finds the prenup VALID - can you appeal
NO - you have to wait until the end to appeal the final order
71
Parties were divorced and husband received the deferred compensation fund under the agreement, without stating anything else. When husband died, he still had wife listed as the beneficiary back from when they were married. Husband's daughter claimed the proceeds from the fund did not belong to wife since they divorced. Does daughter prevail?
NO - FL Supreme Court said if the MSA doesn't specifically say who is or is not to receive the death benefits or specifying who is to be the beneficiary - then whoever is named beneficiary prevails.
72
How is duress defined in the context of prenuptial agreements
A condition of mind produced by an improper external pressure or influence that practically destroys the free agency of a party and causes them to do an act or make a contract not of their own volition.
73
How does one prove duress?
1) that the act sought to be set aside was effected involuntarily and thus not as an exercise of free will; and
(2) that this condition of mind was caused by some improper and coercive conduct of the opposite side.
In other words, the defending spouse's external pressure must result in the challenging spouse's subjective loss of free will at the time the prenuptial agreement is signed.
74
If a party is seeking to prove and oral agreement establishes assent of opposing party, what must it prove
1. Meeting of the minds
2. Clear and unequivocal consent to the agreement
75
What is the primary difference between duress and coercion?
Duress generally occurs by means of actual physical force or threatened physical force to one's person or by threats to one's property or reputation,
Coercion occurs where the defending spouse, through undue influence or moral or economic force, compels the challenging spouse to sign a prenuptial agreement under circumstances which, from a subjective viewpoint, evidence that the challenging spouse did not act of his or her own free will.
76
Prior to the UPAA, what were the two methods for setting aside agreements.
Direct Method: a spouse may set aside or modify an agreement by establishing that it was entered into under fraud, deceit, duress, coercion, misrepresentation or overreaching. Under the direct method, the burden of proof is on the challenging party to prove fraud, deceit, duress, etc.
Indirect Method: the challenging spouse must establish that the agreement makes an unfair or unreasonable provision for that spouse, given the circumstances of the parties. Once established, a presumption arises that there was either concealment by the defending spouse or a presumed lack of knowledge by the challenging spouse of the defending spouse's finances at the time the agreement was reached. Then, the burden shifts to the defending spouse, who can rebut the presumption upon a showing that: the defending spouse made full, frank financial disclosure relative to the value of the marital property and income of the parties; OR the challenging spouse has a general and proximate knowledge of the character and extend of the parties' assets and income.
77
What are the challenges to a prenuptial agreement under the UPAA?
(1) The party did not execute the agreement voluntarily; (2) the agreement was the product of fraud, duress, coercion or overreaching; (3) the agreement was unconscionable when it was executed, AND before the execution of the agreement, the challenging party: (a) was not provided fair and reasonable disclosure of the property or financial obligations of the other party; (b) did not voluntarily and expressly waive in writing any right to disclosure of the property or financial obligations of the party beyond the disclosure provided; and (c) did not have or reasonably could not have had an adequate knowledge of the property or financial obligations of the other party.
78
What is the method in challenging a postnuptial agreement?
THE UPAA DOES NOT APPLY TO POSTNUPTIAL AGREEMENTS, therefore, you must use the CASTO test regardless of if the agreement was executed before or after October 1, 2007.
Direct Method: a spouse may set aside or modify an agreement by establishing that it was entered into under fraud, deceit, duress, coercion, misrepresentation or overreaching. Under the direct method, the burden of proof is on the challenging party to prove fraud, deceit, duress, etc.
Indirect Method: the challenging spouse must establish that the agreement makes an unfair or unreasonable provision for that spouse, given the circumstances of the parties. Once established, a presumption arises that there was either concealment by the defending spouse or a presumed lack of knowledge by the challenging spouse of the defending spouse's finances at the time the agreement was reached. Then, the burden shifts to the defending spouse, who can rebut the presumption upon a showing that: the defending spouse made full, frank financial disclosure relative to the value of the marital property and income of the parties; OR the challenging spouse has a general and proximate knowledge of the character and extend of the parties' assets and income.
79
Are choice of law provisions enforced in Florida?
Absent a public policy violation, Florida enforces a choice-of-law contractual provision. A party seeking to avoid enforcement of a choice-of-law provision has the burden to demonstrate that the foreign law contravenes Florida public policy.
