Marital Agreements

Question 1

What types of marital agreements exist?

Answer 1

1. Premarital agreements
2. Postnuptual agreements
3. Separation agreements
   
   1. Can define property division, spousal support, child support, custody, and visitation
4. Property settlement agreements
   
   1. Before divorce decree is issued.

Question 2

When are premarital agreements valid?

Answer 2

When

1. there has been full disclosure,
2. the agreement is fair and reasonable,
3. the agreement is voluntary, AND
4. no common law contracts defense exists.

Question 3

How can one prove that an agreement was involuntary?

Answer 3

By showing clear and convincing evidence. Merely not reading or understanding an agreement is NOT a defense.

Question 4

When a marriage is voided, will a premarital contract be enforceable?

Answer 4

Only if it will avoid an inequitable result.

Question 5

What is full disclosure?

Answer 5

Full disclosure of financial status, including income, assets, and liabilities of all parties. This can be proven by an express statement that it occurred in the contract, unless clear and convincing evidence shows otherwise.

Lack of full disclosure will only be found if

1. the disclosure was inaccurate AND
2. unfair AND
3. induced the other spouse to execute the agreement AND
4. the affected party did not have the ability to investigate or independently assess the item that had been misrepresented.

Question 6

What does it mean to be “fair and reasonable”?

Answer 6

Basically, that there was fair disclosure, but also other stuff will be considered:

• age
• wealth
• health
• whether the date the contract was signed or enforced can be determined.

N.B.: issue is whether the agreement was fair at the time of execution.

Question 7

When was an agreement entered into voluntarily?

Answer 7

As long as there was no fraud, duress, or misrepresentation, AND the court considers time pressure, parties’ previous business experience, and the opportunity to be represented by independent counsel.

Question 8

When will marital agreements be modified?

Answer 8

If the agreement is about child support, the court may modify it under any circumstances. If the agreement was made before February 12, 1988, then the court can only make downward modifications.