Marriage

Question 1

Premarital agreement - general rules

Answer 1

A valid premarital agreement must be in writing, voluntary, and based on full and fair disclosure of each party’s financial worth. Entry into the marriage is sufficient consideration. The court must consider each provision to ensure that it is fair and does not violate public policy.

Question 2

Premarital agreement - property division provision

Answer 2

The agreement must contain fair and reasonable economic provisions for the claiming spouse. Unconsionability is determined at the time the agreement is formed.

Question 3

Premarital agreement - spousal support provision

Answer 3

The purpose of spousal support is to ensure an adequate income stream for persons whose economic dependency has resulted from the marital relationship. It is against public policy to enforce a waiver of spousal support if it would leave a spouse dependent on the state.

Question 4

Premarital agreement - child custody provision

Answer 4

A court is not bound by child custody provisions in premarital agreements. The court will determine issues of child custody based on the best interests of the children. Factors courts consider in determining whether joint custody is appropriate include:
1. the fitness of both parents
2. whether the parents agree on joint custody
3. the parents’ ability to communicate and cooperate concerning the well-being of the children
4. the children’s preference (depending on their age)
5. the level of involvement of each parent in the children’s lives
6. the geographic proximity of the parents’ homes; and
7. the effect joint custody will have on the children’s psychological development.
Courts often award custody to the parent who has been the primary caregiver.

Question 5

Premarital agreement - child support provision

Answer 5

Parents have an equal duty to support their children. The duty to support cannot be contracted away. the award of support to one party for the benefit of the children is generally based on monetary need and ability to pay.

Question 6

Valid common law marriage

Answer 6

A marriage that is valid where entered will be recognized in other states. The basic requirements to establish common law marriage are: capacity, exchange of consent, cohabitation, and holding out publicly of living together as spouses. For sufficient holding out, courts look to conduct such as using a common last name, opening a joint bank account, and telling others in the community that they consider themselves married.

Question 7

Contracts between unmarried cohabitants

Answer 7

Contracts between unmarried cohabitants will be enforced if sexual relations are not the only consideration for the contract.

Question 8

Settlement agreement

Answer 8

A settlement agreement is an agreement entered into during the marriage, before the issuance of the divorce decree in which the parties may resolve economic issues. Settlement agreements are governed by general contract principles. Most states require full and fair disclosure by both parties. Most state require a settlement agreement to be fair and entered into voluntarily - without undue influence. An agreement may be set aside when a spouse’s fraud, duress, or coercive behavior results in an unfair agreement. Representation by independent counsel lessens the chances of the agreement being overturned.