Issues Prior to Marriage

Question 1

True or False: Most states still have a cause of action for a breach of a promise to marry?

Answer 1

False. a majority of states abolished the claim, but it provided for a tort action for actual damages.

Question 2

True or False: Gifts in contemplation of marriage, such as an engagement ring, must be returned if the marriage does not happen.

Answer 2

True.

Question 3

What is an Antenuptial Agreement and what may it contain

Answer 3

A premarital contract (which courts hold valid) addressing the rights of parties upon divorce or death.

It must contain:
1. disposition of property upon death or divorce
2. making of wills (like mutual agreement to make a will)
3. Making of trusts, or other arrangements to carry out the provisions o fhte agreement.
4. Choice of law governing construction,
5. And any other matter not violating law or public policy.

Note: Pre-nups can make agreements regarding alimony, but a court can find them unenforceable. Similarly, agreements regarding custody are either void, or voidable and never bind a court.

Question 4

What is consideration for a prenup?

Answer 4

Because it is a contract, consideration is required, but marriage alone is enough.

Question 5

What are the requirements for a valid pre-nup

Answer 5

1. Contract in writing and signed
2. entered into voluntarily (no fraud, duress, or overreaching)
3. There must be a full and fair disclosure of the parties assets, or at least an independent knowledge of the assets.

NOTE: Some courts only consider these elements if the contract is unconscionable under the UPAA, and other courts consider whether economic provisions are fair and reasonable.

Question 6

Must each spouse of independent counsel prior to entering into a pre-nup?

Answer 6

No. Although not required, a court is far less likely to find overreaching and refuse to enforce the contract if they do have independent counsel.

Question 7

What is the status of a pre-nup if the marriage is void?

Answer 7

the agreement will only be enforceable to the extent necessary to avoid inequitable result.

Question 8

What if the pre-nup contains no provision as to the choice of law?

Answer 8

If there is no choice of law –> governed by law of the state where it was executed.