Marital Agreements Flashcards
Premarital agreements
Prenuptial agreements.
Entered into before marriage and in contemplation of marriage between prospective spouses.
Uniform Premarital Agreement Act
Prenups are governed by UPAA in Florida and in majority of states.
Content of prenup upon divorce, separation, or death includes:
- property
- alimony
- attorney’s fees
Prenup cannot determine child support or custody.
SOF applies - must be in writing signed by both parties.
Effective date is the date of marriage.
Can only be amended, revoked, or abandoned by a writing signed by the parties.
No separate consideration needed.
Validity and enforcement of prenup under UPAA
Agreement is presumed valid and enforceable if it meets the requirements.
Burden of having the agreement not enforced is on the party trying to avoid the agreements.
Requirements for enforcement:
- In writing
- Voluntarily executed
- No fraud, duress, coercion, or overreaching
- Was not unconscionable at time of execution
Fraud, duress, coercion, overreaching factors
- time pressure to execute agreement
- lack of legal counsel or opportunity to obtain legal counsel
- education
- business sophistication
- age
- health
- language proficiency
Unconscionable at time of execution, if:
- no fair & reasonable disclosure of assets & financial obligations;
- did not waive such disclosure; and
- no knowledge & couldn’t have reasonably obtained knowledge of such assets and obligations.
Post marital agreements
Agreements made between spouses during marriage.
Not subject to SOF, unless subject of the agreement falls within SOF, such as transfer of RP.
Can include separation agreement made in contemplation of divorce, which can be merged into a final settlement agreement.
Can limit or preclude spousal support, but never child support.
