Before Marriage

Question 1

BREACH OF PROMISE TO MARRY

Answer 1

• Actions for breach of promise to marry are rare today, & most states have abolished the claim.
• In states that retain the action, it sounds like a K claim, but it provides tort damages including actual damages (Ex. money already spent on wedding) & damages for loss of reputation, mental anguish, & injury to health.
• Punitive damages may be available.

Question 2

GIFTS IN CONTEMPLATION OF MARRIAGE

Answer 2

• If marriage does not take place, gifts conditioned on marriage (ex. engagement ring) must be returned.

Question 3

ANTENUPTIAL (PREMARITAL) AGREEMENTS

Answer 3

• Premarital Ks (antenuptial agreements) are valid Ks that address the rights of parties upon divorce/death.
• Marriage is sufficient consideration to support a premarital K.

Question 4

Content of Contract

Answer 4

• Under Uniform Premarital Agreement Act (“UPAA”), these agreements can cover disposition of property in event of death/divorce; the making of a will, trust, or other arrangement to carry out provisions of agreement; the choice of law governing construction of agreement; & any other matter not in violation of public policy/criminal statute.
• Generally, parties can make agreements regarding alimony (spousal support), but ct may find provision unenforceable if it leaves disadvantaged spouse a public charge.

Question 5

Tip

Answer 5

• Watch for child custody & support provisions in premarital agreements.
• These provisions never bind ct.
• In some states, custody & child support provisions are void as against public policy, while in others they are subject to judicial review.

Question 6

Requirements for Validity

Answer 6

For a premarital K to be enforceable:
(1) K must be in writing & signed
(2) Agreement must be entered into voluntarily, meaning w/o fraud, duress, or overreaching
(3) Must be a full & fair disclosure of parties’ assets/ proof that party against whom agreement is being enforced had independent knowledge of assets
- Under UPAA, cts only examine this element if agreement is unconscionable
- Some cts consider whether the economic provisions are fair & reasonable.

Question 7

Independent Counsel

Answer 7

• Although not required, if both parties are represented by independent counsel, cts are far less likely to find overreaching & refuse to enforce K

Question 8

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Answer 8

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Question 9

Void Marriage

Answer 9

• If marriage is found to be void, premarital agreement is enforceable only to extent necessary to avoid an inequitable result.

Question 10

Choice of Law

Answer 10

• Premarital agreements often contain valid choice of law provisions.
• If agreement at issue does not contain a COL provision, then its enforceability is governed by state law where it was executed/ state w/ the most significant relationship to parties.