MEE Family Law Flashcards
When is a premarital agreement enforceable?
A premarital agreement is enforceable if there has been full disclosure, the agreement is fair and reasonable, and it is voluntary. Additionally, the agreement must be in writing and signed by the party to be charged. Any clauses included in a premarital agreement that relate to child custody and support are unenforceable.
Under the Uniform Premarital Agreement Act (UPAA) when is a premarital agreement invalid?
Under the Uniform Premarital Agreement Act (UPAA), the party defending against enforcement of a premarital agreement must prove it invalid by clear and convincing evidence. A premarital agreement is invalid if it was (1) involuntary or (2) unconscionable when executed AND the defending party did not have, or reasonably could not have had, adequate knowledge of the other’s assets and obligations due to lack of disclosure.
What factors do courts consider to determine if an agreement is voluntary?
To determine whether an agreement is voluntary, courts consider factors such as time pressure, the parties’ previous business experience, and the opportunity to be represented by independent counsel. However, a party’s insistence on the agreement as a condition to marriage is not considered duress.
How are assets divisible at divorce absent a premarital agreement?
In most states, property acquired during the marriage is considered marital property. However, property acquired by gift or inheritance during the marriage is the individual’s separate property. Separate property is not subject to division at divorce. But the appreciation in separate property can be marital property if it’s attributable to either spouse’s labor during the marriage.
A minority of states subject all property owned by either spouse to equitable distribution (i.e., the “hotchpot” approach).
What is the standard for determining child custody?
The standard for determining child custody is the best interest and welfare of the child. (parent preferred) Generally, a parent is in the best position to care for a minor child, unless the parent is determined unfit. There is no presumption for custody in favor of the mother. (primary caregiver) Many courts consider who the primary caretaker of the child was up until the divorce when determining who should have custody. The primary-caretaker consideration not only encompasses the day-to-day care of the child, but also includes the quantity and quality of time spent with the parent at the time of the hearing, rather than in the past.
What is the system of equitable distribution upon divorce?
Most states follow a system of equitable distribution upon divorce. The objective of the equitable-distribution system is to order a fair distribution of al marital property, taking into consideration all of the circumstances between the parties. In most states, all property acquired during the marriage is marital property and subject to equitable distribution. Whether the appreciation in nonmarital property will be subject to equitable distribution will depend on whether the appreciation can be attributable to spousal labor.
What factors do courts consider in determining equitable distribution of marital property?
Courts consider a number of factors in determining the equitable distribution of marital property. Some of the relevant factors include the length of the marriage, the age, health, earning potential, and needs of both spouses, the value of separate property, the spouses’ standard of living, and economic circumstances of each spouse at the time of divorce.
When can separation agreements be invalidated?
Separation agreements can be invalidated, in whole or, in part, if the court makes a finding of fraud or unconscionability.
[EX R: A contract is unconscionable when it is so unfair to one party that no reasonable person in the position of the parties would have agreed to it. The contract or party of the contract at issue must have been offensive at the time it was made. Unconscionability may also be applied to prevent unfair surprise.]
Can the property division award of a divorce decree be modified?
Though a support award can be modified subsequent to a divorce decree, the property division award cannot be modified. Unlike support awards, which are subject to changing circumstances, the division of the marital assets was determined based upon known facts and circumstances as they existed at the time of divorce.
When can spousal support awards be modified?
Spousal support awards can be modified based upon a significant change in a party’s circumstances.
Whether non-paternity of a child can be established after entry of a divorce decree to provide grounds to modify the child-support award?
Traditionally, courts have been loath to modify an established parent-child relationship, citing the child’s best interest as reason to deny admission of evidence of non-paternity or to deny a motion to disestablish paternity. However, some states have recently recognized the interests of erroneously identified father’s. If the court is in a jurisdiction that allows erroneously identified father’s to offer proof of non-paternity, the motion might succeed.
