Marital Agreements Flashcards
What is a premarital agreement?
What kind of consideration does it need to be enforceable?
What must expressly be stated in a premarital agreement?
An agreement made before a marriage which highlights how property will be divided and/or what spousal support will be given upon divorce.
A valid marriage is sufficient consideration.
Many states - a premarital agreement must expressly state its applicability to divorce
What is a separation agreement?
What can a separation agreement define in it?
What is a separation agreement governed by?
Agreements made between spouses when they are planning for divorce.
Can define property division, spousal support, child support, custody, and visitation.
Either governed by the judge’s verdict via the agreement being merged into the final judgment for divorce
OR
governed by contract law.
What is a property-settlement agreement?
When is a property settlement agreement entered into?
Agreements that settle economic issues of the marital estate.
Entered into by parties before a divorce decree is issued
How can you attack a premarital agreement?
State that the agreement is unenforceable and try to invalidate the agreement.
When is a premarital agreement enforceable?
A premarital agreement is enforceable IF
-> full disclosure of financial status of each party at the time of execution
-> agreement is fair and reasonable (whether there was duress, fraud, or undue influence)
AND
-> agreement is voluntary (court considers whether party has time to get independent counsel, time pressure, and parties previous business dealings)
How can a party prove that a premarital agreement is invalid?
UPAA requires the party against whom enforcement is sought to prove:
-> involuntariness in entering the agreement;
OR
-> that the agreement was unconscionable when executed
—-> AND she did not receive or waive fair and reasonable disclosure;
—-> AND she did not have, or reasonably could not have had, adequate knowledge of the other’s assets and obligation
How does a premarital agreement satisfy the statue of frauds?
Must be in writing, signed by the party to be charged, and contain all essential terms.
Under premarital agreements, when are provisions restricting modification enforceable and when are such provisions not enforceable?
Provision that prevents modification of property rights, including spousal support are permitted.
Provision that prevents modification of child support is not enforceable
What is the type of agreement between unmarried cohabitants?
What type of consideration is insufficient and sufficient to make the agreement enforceable?
Cohabitation agreements -> a contract between unmarried persons is invalid IF
-> the only consideration is sexual relations;
Valid IF
-> the consideration is for companionship and/or cooking
Can be explicit or implied.
Courts generally enforce them.
How does a court handle the separation of property when there is no expressed cohabitation agreement?
Equitable property distribution to avoid unjust enrichment of one over the other (e.g. resulting trust, constructive trust, or quantum meruit)
