Marital Agreements and Relationships Between the Family and the State Flashcards
Premarital Agreements
Contract made BEFORE the marriage. Typically contains terms that govern division of property or spousal support upon divorce or death.
Clauses relating to child custody and support are UNENFORCEABLE.
Agreement must be inn writing and signed by the party to be charged.
A premarital agreement is enforceable if:
- there has been FULL DISCLOSURE
- the agreement is FAIR AND REASONABLE
- it was VOLUNTARILY entered into
Uniform Premarital Agreement Act (UPAA): to argue that an agreement is unenforceable, must show at least ONE of the following:
- involuntariness (fraud, duress, coercion), or
- unconscionability when executed and lack of reasonable knowledge or disclosure of the other’s assets and obligations
For voluntariness, court will consider time-pressure and opportunity to be represented by independent counsel.
Note: A party’s insistence on an agreement as a condition to marriage does NOT make it involuntary.
For fairness and reasonableness, there are two kinds:
1) Procedural Fairness: the court will look for factors such as duress, undue influence, misconduct by a mediator, and whether the party had independent counsel
2) Substantive Fairness: the courts will also consider the fairness of the terms themselves
Note: Most courts evaluate fairness at the time of the execution of the contract (minority will consider it at the time of enforcement).
Trend: Courts will enforce contractual agreements that may not be fair as long as there has been fair disclosure (of assets, debts, income)
Choice of Law: Most courts use the state with the most significant relationship to the agreement and the marriage.
Separation Agreements
Made between spouses who are planning for divorce to define property division, spousal support, child support, custody and visitation.
Generally MERGED into the final judgment for divorce.
May be invalidated in part or in whole if a party can show unconscionability or fraud.
Property Settlement Agreements
Settle the economic issues of the marital estate.
Entered into by the parties before a divorce decree is issued.
May be invalidated in part or in whole if a party can show unconscionability or fraud.
Adoption (Generally)
The prior parent-child relationship is terminated, and a new parent-child relationship is created.
The child is adopted for all purposes (inheritance, rights, privileges).
The law prohibits payment to the natural parent for the adoption.
Adoption - Termination of Natural Parent’s Rights
Before adoption may occur, the bio parents’ rights must be terminated.
Termination can be voluntary (consent) or involuntary (court process).
Legal Effects of Adoption
The adoptive parents have all the rights and obligations of bio parents.
The child has all the rights of a bio child.
Bio parents have no rights to visitation unless the parties agree otherwise.
Adoptions may not be dissolved, except in cases of undisclosed mental or physical illness. Courts review the child’s needs, parents’ motives, and length of the relationship.
Domestic Violence
Domestic violence is typically physical abuse (not emotional or mental). Every jurisdiction has a statute for civil relief for victims.
Nearly every jurisdiction requires the perpetrator of the violence to be in a relationship with the victim, or a family or household member.
Most statutes include: spouses, former spouses, children, household members, family members, and unmarried parents who have a common child.
Typically require a “continuum of behavior” but a single episode may qualify.
Relief is often injunctive relief - no contact order (temporary restraining order, then hearing for a permanent order with notice to D)
Limits on Parental Authority
Parental authority is NOT absolute.
Courts may terminate parental rights if it’s in the best interests and welfare of the child.
Grounds for termination of parental rights can include: abandonment, neglect, failure to support, inflicting serious harm, etc.
A parent had a right to make decisions about how to raise a child, but courts may intervene if in child’s best interests.
