Duty of Support/Prenuptial and Post-Nuptial Agreements

Question 0

Premarital Agreements Generally

Answer 0

May deal with rights in the others estate in the event of death, alimony and property division in the event of divorce.

Must meet all other requirements of a valid contract but need no independent consideration other than mutual agreement to marry.

Premarital contracts between prospective spouses are valid and enforceable except agreements conditioned on a void marriage is unenforceable.

Question 1

Contracts Between Spouses

Answer 1

Married persons can contract with each other

Contracts involving business matters are enforceable - generally.

Contracts involving domestic services are generally invalid

Agency relationship is not established merely by marriage. Spouse is not empowered to bind the other to a contract such as a lease.

Question 2

Creation of Marital Agreements: Requirements for enforceability

Answer 2

1. Must be in writing
2. Subscribed by the parties
3. Acknowledged in the manner required to entitle a deed to be recorded.

Question 3

What may be included in a marital agreement?

Answer 3

Contracts to make testamentary provisions

Provisions for the ownership, division, or distribution of property

Fair and reasonable provisions for amount and duration of maintenance.

Provisions for the custody, care, education, and maintenance of children.

Question 4

10th Amendment and Jurisdiction of Family Law matters

Answer 4

10th Amendment - family law under EXCLUSIVE jurisdiction of STATE except as limited by specific constitutional provisions.

Federal courts do not have diversity jurisdiction in domestic relations matters.

Question 5

Constitutional Privacy Cases

Answer 5

Griswold v. Conn - dealt with the right of married persons to use contraceptives.

Eisenstadt v. Baird - extended the privacy right about the use of contraceptives to outside the marital relationship.

Question 6

Considerations whether provisions of a marital agreement are fair and reasonable

Answer 6

1. Relative financial positions of the parties
2. no express provisions dissolution of marriage or procuring grounds for divorce
3. may not relieve duty to support to render spouse a public charge

Question 7

Maintenance Factors

Answer 7

1. Income&Property of respective parties including ED
2. duration of marriage
3. present and future earning capacity
4. ability of party seeking maintenance to become self supporting
5. reduced lifetime earning capacity of party seeking maintenance
6. presence of children in respective home of parties
7. taxes
8. contribution as spouse, parent, homemaker to career of other party
9. wasteful dissipation
   10 transfer or encumbrance in anticipation of matrimonial action
   11 other just and proper considerations