Marriage and divorce: marital agreements

Question 1

Premarital agreements

Answer 1

Premarital agreements—also known as “prenuptial” or “antenuptial” agreements—typically contain terms relating to division of property or to spousal support in the event of divorce or death.

Question 2

Premarital agreements: enforceability

Answer 2

A premarital agreement is enforceable if:

(1) There has been full disclosure, e.g., of financial status (income, assets, and debts);
(2) The agreement is fair and reasonable; and
(3) The agreement is voluntary.

Clauses relating to child custody and support are unenforceable.

Question 3

Premarital agreements: Uniform Premarital Agreement Act

Answer 3

To be enforceable under the UPAA, a premarital agreement must be voluntary, fair and reasonable, and subject to full disclosure.

To prevent enforcement of a premarital agreement, the UPAA requires that the party against whom enforcement is sought prove:

(1) Involuntariness: fraud, duress, or coercion, although insistence on the agreement as a condition of marriage is not considered duress; or
(2) Both of:
(a) Unconscionability at execution—unfairness or reasonableness; and
(b) lack of reasonable knowledge or disclosure.

Question 4

Premarital agreements: voluntariness

Answer 4

In evaluating whether a premarital agreement was voluntary, a court generally considers factors such as:

(1) Time pressure;
(2) The opportunity to be represented by independent counsel.

Question 5

Premarital agreements: fair and reasonable

Answer 5

The majority approach evaluates fairness at the time of execution, whereas the minority approach evaluates fairness at the time of enforcement.

The court will evaluate the premarital agreement for both:

(1) Procedural unconscionability:

whether there was duress, undue influence, or misconduct by a mediator, and whether the party to be charged had independent representation; and

(2) Substantive unconscionability:

the fairness of the terms themselves, although some states may accept a showing of unfairness short of unconscionability.

Question 6

Separation agreements

Answer 6

Separation agreements define property division, spousal support, child support, custody, and visitation.

The court will generally enforce a separation agreement unless it is unconscionable or based on fraud.

Question 7

Property-settlement agreement

Answer 7

Entered into by the parties before a divorce decree is issued, a property-settlement agreement is intended to settle the economic issues of the marital estate.

A property-settlement agreement may be invalidated in part or in whole if a party can show unconscionability or fraud.

Question 8

Premarital agreements: conflicts of laws

Answer 8

When determining the validity of the agreement, a state will apply the law of either:

(1) The state in which the agreement was executed; or
(2) The state with the most significant relationship to the parties and transaction.

Question 9

Premarital agreements: trends in enforcement

Answer 9

Absent full disclosure, a court generally will refuse to enforce the agreement.

Even if the terms are unfair, courts tend to enforce contractual agreements if there has been fair disclosure.

Question 10

Contracts between unmarried persons

Answer 10

Contracts between unmarried persons to share earnings or property rights may be express or implied.

Courts are less likely to enforce an implied contract.