Marital Agreements Flashcards
What is a premarital agreement?
A contract made before the marriage, typically containing terms that relate to division of property or spousal support in the case of divorce and death. A valid marriage is sufficient consideration for premarital agreement.
What is the choice of law approach for determining whether a premarital agreement is enforceable?
Most states apply the law of the state with the most significant relationship to the agreement and the subsequent marriage, but some states apply the law of the state where the agreement was executed.
What is a separation agreement?
Separation agreements are made between spouses who are planning for divorce and include provisions related to property division, special support, child support, custody, and visitation. The court will generally enforce spousal maintenance and property division, so long as the agreement is not unconscionable or based on fraud. Provisions related to child support and custody, on the other hand, are modified by the court if the initial terms are not in the best interest of the child. These agreements are generally merged into the final judgment for divorce, so long as they are based on full and fair disclosure. With no merger occurs, it is based on contract or rather than judgment enforcement.
What makes a premarital agreement enforceable?
There must be full disclosure, the agreement is fair and reasonable, and it is voluntary. The agreement must be in writing and signed by the party to be charged.
Which party bears the burden of proving the agreement is not enforceable?
The party against him enforcement is sought. The burden of proving invalidity is by clear and convincing evidence.
What does the moving party have to prove to demonstrate invalidity?
(1) Involuntariness, OR
(2) The the agreement was unconscionable when it was executed, that she did not receive or wave fair and reasonable disclosure, AND she did not have or could not have had an adequate knowledge of the others assets and obligations.
What is a full disclosure for purposes of a premarital agreement?
Includes full disclosure of financial status, including income, assets, liabilities of all parties. Absolute full disclosure, a court will generally refuse to enforce the agreement because it does not demonstrate that each party exercised a meaningful choice when they agreed to the terms of the contract.
What does a court look at to determine if the pre-marital contract terms are fair and reasonable?
The parties wealth, age, and health. Courts will look at both whether the agreement is fair procedurally and substantively. And agreement obtained by fraud, address, or undue influence may be satisfied as procedure really unfair. Most courts evaluate fairness at the time of the execution of the contract. Current trend is records to enforce contractual agreements that may not be fair as long as there has been fair disclosure.
What factors does a court consider in determining whether a premarital agreement was entered into voluntarily?
Time pressure, the parties previous business experience, and the opportunity to be represented by independent counsel. The parties insistence on the agreement as a condition to the marriage is not considered dress.
*Address the question of voluntariness by discussing whether the individual was both informed of her right to counsel and given the opportunity to consult counsel.
