Before Marriage

Question 1

Breach of Promise to Marry

Answer 1

• rare today, + abolished in most states
• even though it sounds like a contract claim, it provides tort damages -> includes:
  -> actual damages
  -> damages for loss of reputation, mental anguish, + injury to health
  -> possibly also punitive damages

Question 2

Gifts in Contemplation of Marriage

Answer 2

• if the marriage doesn’t take place, gifts conditioned on the marriage (ex: engagement rings) must be returned

Question 3

Premarital Agreements - Overview

Answer 3

• aka antenuptial agreements
• valid Ks that address the rights of parties on divorce or death
• the marriage = sufficient consideration to support the contract

Question 4

Contents of Premarital Agreements

Answer 4

Under Uniform Premarital Agreement Act (adopted by majority of states), these agreements can cover:
- disposition of property in the event of death or divorce
- making of a will, trust or other arrangements to carry out provisions of the agreement
- choice of law governing construction of the agreement
- any other matter not in violation of public policy or criminal statute

• parties can also generally make provisions re alimony, but court may find them unenforceable if leaves the disadvantaged spouse a public charge

Question 5

Premarital Agreements - Child Custody and Support

Answer 5

• NEVER bind the court in premarital agreements
• in some states, they’re void as against public policy
• in other states they’re subject to judicial review

Question 6

Premarital Agreements - Requirements for Validity

Answer 6

To be enforceable, most courts require:
- in writing + signed
- entered into voluntarily -> w/o fraud, duress, or overreaching
- full + fair disclosure of parties’ assets or proof that the party against whom the agreement is being enforced had independent knowledge of the assets
-> under UPAA, courts only examine this elements if the agreement is unconscionable
- some courts consider whether the econ provisions are fair + reasonable

Question 7

Premarital Agreements - Independent Counsel

Answer 7

• not required
• BUT if both parties are represented by independent counsel, courts are less likely to find overreaching + refuse to enforce the K

Question 8

Premarital Agreements - Void Marriage

Answer 8

• if a marriage is found to be void, a premarital agreement is enforceable only to the extent necessary to avoid an inequitable result

Question 9

Premarital Agreement - Choice of Law

Answer 9

• premarital agreements often contain valid choice of law provisions, then its enforceability is governed by the law of the state where it was executed or the state with the most significant relationship to the parties