Family Law- Marital Agreements

Question 1

What are premarital agreements?

Answer 1

Premarital Agreements (“pre-nuptial” or “ante-nuptial” agreements)
o An agreement between prospective spouses
o It is a contract.
o Terms relate to property, spousal support in the case of death or divorce, etc.
o A valid marriage is the basis of the consideration for these contracts.
o Many jurisdictions require an express statement in the agreement that it applies in the
event of a divorce.
o Not enforceable with regard to child support or child custody terms
o

Question 2

Which law applies to Premarital agreements?

Answer 2

Uniform Premarital Agreement Act (UPAA)—adopted in 26 states with lots of amendments
o Uniform Premarital and Marital Agreements Act (UPMAA)—adopted in two states
o Choice of law—most courts use the state with the “most significant relationship” to the agreement and the marriage

Question 3

Separation agreements

Answer 3

Separation Agreements (“post-nuptial” agreements)
o Can decide property division, child support, spousal maintenance, custody, visitation, etc.
o Made between spouses planning for divorce
o Enforceable so long as there is no fraud or unconscionable aspect
o Always modifiable regarding child support and custody, if it is in
the best interest of the child
o Usually merged into the final decree of divorce
 When the separation agreement is merged into the final divorce decree, enforcement
is accomplished through enforcement of the judgment.
 When no merger occurs, enforcement is based on a breach of contract claim.

Question 4

. Property Settlement Agreements

Answer 4

o Purpose—settle and finalize the economic issues between the
parties to an impending divorce
o May be entered into prior to the divorce decree
o Enforceable so long as there is no fraud and no unconscionability

Question 5

What are the requirements for marital agreements to be valid

Answer 5

o Full disclosure of assets and debts;
o Fair and reasonable terms;
o Voluntary;
o In writing; and
o Signed

Question 6

How to invalidate a marital agreement?

Answer 6

Burden on party trying to invalidate the agreement
o Must prove the agreement is invalid by clear and convincing evidence
o To invalidate, the UPAA requires:
 The agreement was involuntary; or
 It was unconscionable when executed:
* Spouse did not waive fair and reasonable disclosure; and
* Spouse did not have or could not have had adequate knowledge of the other’s assets and debts.

o If the marriage is voided, the premarital contract is enforceable only if it will avoid an inequitable result.

Question 7

What does full disclosure means?

Answer 7

The parties must fully disclose their financial status, including income, assets, and liabilities.

Question 8

What does the court deem fair and reasonable ?

Answer 8

o Courts consider wealth, age, and health of the parties.
o Courts also consider if the agreement was procedurally and substantively fair.
o Procedural unfairness may include fraud, duress, force, undue influence, or mediator misconduct.

o Most courts look at the fairness of the document at the time of execution.
 Minority look at time of enforcement (i.e., divorce)
o Current trend: A court will enforce an agreement as long as there was full disclosure, even if it is not necessarily fair.

Question 9

What does voluntary means for the court?

Answer 9

. Voluntary
Courts consider factors like:
o Time pressure
o Previous business experience of the party
o Whether the parties are represented by counsel

Question 10

Property Division Between Unmarried Cohabitants

Answer 10

When there is no express contract, courts turn to equitable
distribution of property to avoid unjust enrichment.
constructive trust
unjust enrichment
estoppel