Marital Agreements Flashcards
FAV FIVE
(Rights of Married Parties)
- Divorce
- Child Support
- Spousal Support
- Child Custody
- Property
Premarital Agreements
A contract between prospective spouses made in contemplation of marriage and to be effective upon (legally valid) marriage that determines the rights (Fav Five) of each party in the event of divorce, legal separation, or death of a party while married.
Requirements of the UPAA
A premarital agreement is unenforceable only if:
- the agreement is signed involuntarily; or
- the agreement was unconscionable WHEN SIGNED; and
- there was inadequate disclosure (and no waiver of disclosure).
Elements of Procedural Fairness
- Statute of Frauds: must be in writing and signed by the parties. Exceptions: sufficient part performance; enforcement would cause a fraud to be perpetrated, or one party’s representation and the other’s reliance would result in a detrimental change in position.
- Consideration: the mutual promises to marry have traditionally been the consideration.
- No obvious overreaching: full disclosure (waiver of disclosure may pose an issue) fair and reasonable provisions, voluntariness, and advice of counsel.
Defenses: fraud, duress, undue influence, misrepresentation, coercion
Elements of Substantive Fairness
- The parties have entered into the agreement freely without fraud, duress, coercion, or overreaching.
- If there was full disclosure, or full knowledge and understanding of the nature, value, and extent of the prospective spouse’s property.
- If the terms do not promote or encourage divorce or profiteering by divorce.
Post Nuptial Agreements
Intact marriage where separation is not intended; therefore, courts conclude that postnuptial agreements require stricter scrutiny than prenuptial agreements.
In applying special scrutiny, a court may enforce a postnuptial agreement only if it
(1) complies with applicable contract principles and
(2) the terms of the agreement are both fair and equitable at the time of execution and
(3) not unconscionable at the time of dissolution.
Reconciliation Agreement
intact marriage after a “breakup” based upon conditions. Agreements affecting a reconciliation between estranged spouses. Reconciliation is considered the consideration.
Note: NC does recognize these agreements
What would make a prenuptial agreement unenforceable?
(1) The agreement was obtained through fraud, duress, misrepresentation, or nondisclosure of material facts;
(2) The agreement is unconscionable; or
(3) A change in circumstances would make enforcement unfair or unreasonable.
Law of Evidence (Marital Privilege)
Two Types
Testimonial Privilege
Confidential Communication Privilege
Law of Evidence (Marital Privilege)
Modern Rule
The witness spouse alone has the privilege to testify adversely.
The witness may be neither compelled to testify nor foreclosed from testifying.
When do issues with ownership and control of property arise in a marriage?
During the Marriage: marriage is intact, the spouses owe a duty of honesty and fair dealing with each other.
They have the right to agree as to how they want to address all real and personal property issues
Ending of the marriage: marriage is no longer intact. There is/has been/is about to be a separation, dissolution, annulment.
When spouses cannot agree as to how they will distribute their property, the courts will do it: equally or equitably
Death of a spouse: the law of wills, trusts and intestate succession and probate will control
Loss of Consortium Claim
Under current law, both husband and wife may recover when a spouse has been injured by the negligence or intentional conduct of a third person.
In order to avoid the risk of double recovery, many states require that the consortium claim be brought with the underlying tort action and permit the defendant to raise any defenses available against the victim against the victim’s spouse as well.
