Family Law- Marital Agreements Flashcards

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1
Q

What are premarital agreements?

A

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

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2
Q

Which law applies to Premarital agreements?

A

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

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3
Q

Separation agreements

A

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.

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4
Q

. Property Settlement Agreements

A

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

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5
Q

What are the requirements for marital agreements to be valid

A

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

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6
Q

How to invalidate a marital agreement?

A

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.

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7
Q

What does full disclosure means?

A

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

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8
Q

What does the court deem fair and reasonable ?

A

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.

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9
Q

What does voluntary means for the court?

A

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

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10
Q

Property Division Between Unmarried Cohabitants

A

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

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