Marital Agreements Flashcards
1
Q
Premarital agreements
A
- General rule (after 1/1/86)
• Writing, signed by both parties, enforceable without consideration
• Oral agreements may be enforceable if promise fully executed by promisor or promisee detrimentally relied on oral agreement
• Creditors with notice may be bound to a valid agreement - Prohibited—cannot include child support; should not promote divorce
- Defenses to enforceability
• Not voluntarily executed—voluntarily requires (i) separate legal representation, unless waived knowingly when fully informed; (ii) not less than seven days to sign; (iii) no fraud, duress, or undue influence
• Unconscionable when executed—not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party, lacked adequate knowledge, and did not expressly and voluntarily waive disclosure in writing - 1/1/02 amendments—after 1/1/02, provisions in premarital agreements regarding spousal support will not be enforceable (i) against party not represented by independent counsel when agreement was signed; or (ii) if provision is unconscionable at the time of enforcement
2
Q
Transmutations
A
- Must be in writing by an express declaration of the spouse whose interest is adversely affected; extrinsic evidence and statements in wills not considered
• Writing exception—gifts not substantial in value between spouses used solely or principally by the receiving spouse - Language must expressly state ownership being changed (exception for tangible gifts of personal nature not substantial between spouses)
- Documentary language controls over extrinsic evidence of spouse’s intent
3
Q
Separation agreements
A
Can settle property rights, custody, and spousal support; cannot alter marital status
- Grounds to set aside—fraud, mistake, breach of fiduciary duty, or failure to disclose
- Negligence—will not be set aside as a result of the claimant’s negligence, unless negligence attributable to attorney
