Marital Agreements Flashcards
Antenuptual Agrements
Prenuptual agreements are generally valid between prospective spouses (unless there is a meretricious contract to marry). The prenup is a contract, and when unambiguous, clear, and explicit, it must be construed as written. Like all contracts, the prenuptual must meet the
statute of frauds and be supported by consideration (agreement to marry may form consideration). Like all contracts, changed circumstances may justify judicial modification of the agreement.
Marital property may be defined in the agreement—such an agreement is presumptively valid if it is
(1) in writing
(2) after full financial disclosure
(3) voluntarily executed
(4) with each party represented by counsel.
Defenses to Antenuptual Agreements
Defenses : The defenses to an antenuptual agreement are similar to other contract defenses:
(1) the agreement was obtained through fraud, duress, or
mistake
(2) the other party misrepresented or failed to disclose material facts
(3) the agreement is unconscionable
(4) the facts and circumstances have so changed since the
agreement was executed as to make its enforcement unfair and unreasonable.
Child Custody and Support - Agreements
Child custody : Child custody, child support, and spousal support cannot be authoritatively determined by contract, and child support may not be waived by contract.
Marital Agreements Incident to Divorce
Marital agreements incident to divorce
Marital agreements are generally valid, but because the parties are not at arms’ length, courts strictly scrutinize them. Scope : A marital agreement cannot authoritatively deterine custody, child support, or spousal support.
Burden of Proof
Burden of proof : The spouse claiming validity bears the burden to show the validity. Family court cannot adjudicate contract disputes between spouses unless they are incident to the marriage.
Factors favoring enforceability :
(1) voluntarily made
(2) in good faith
(3) fair and equitable
Types of Agrements
Types of agreements : Married persons may make agreements relating to settlement, reconciliation, and separation.
Effect of Reconciliations
Effect of reconciliation : Reconciliation nullifies a previous separation or settlement agreement unless the agreement has been court approved. Fully executed provisions will likely not be affected by reconciliation.
Aliminoy and Child Support Agreements
Alimony and child support agreements
These agreements are not final and can be modified as requires—either party may seek modification.
Legal threshold for modification :
(1) substantial change in circumstances since agreement executed—reducing support based on agreement requires greater showing of substantial changes than otherwise
(2) no increased burden if seeking to increase the child support amount.
Alimony may be expressly waived for consideration.
Without express waiver, the right to receive survives.
Parties cannot waive child support.
Property Agreements
Property agreements
Property agreements are generally binding and specifically enforceable and cannot be modified by the court.
Enforceability : An agreement must be entered into voluntarily and without undue influence or coercion.
Factors to determine voluntariness:
(1) opportunity to seek counsel
(2) place and time of agreement presented (i.e. sufficient time to reflect on terms)
(3) statements made during presentation of agreement
If the parties intend the agreement to be the final settlement of their marital obligations relating to any kind of property, it is a property settlement and, as such, is final and unmodifiable.
Concurrent Jurisdiction with Probate Court
Concurrent jurisdiction with Probate Court
The Family Court and the Probate Court have concurrent jurisdiction over matters of paternity, common-law marriage, interpretation of marital agreements in connection with family, estate, trust, guardianship, and conservatorship actions.
