MEE issues and rule statements

Question 1

Enforceability of Premarital Agreements mainly under the Uniform Premarital Agreement Act

Answer 1

A majority of states have adopted, in part, the UPAA (Uniform Premarital Agreement Act) regarding the enforceability of premarital agreements that deal with divorce. Under the UPAA, a premarital agreement is unenforceable if: (1) the agreement wasn’t voluntary, or (2) there was a lack of reasonable disclosure, and the agreement was unconscionable when executed.

Question 2

Premarital Agreements general description

Answer 2

Premarital agreements are generally valid devices to resolve disputes between spouses in the event of divorce, as well as a means for estate planning in the event of death. To be enforceable, a premarital agreement must satisfy the requirements for contract formation and generally must be in writing and signed by both parties.

Question 3

Premarital agreements and Voluntariness

Answer 3

Voluntariness is evaluated under the usual common law standard in contract situations. A party enters into a contract voluntarily when his choice to do so is not unduly impeded, encumbered, or undermined. Lacking voluntariness, a premarital agreement becomes subject to the contract defenses of fraud, misrepresentation, or duress. In determining whether a party entered a premarital agreement voluntarily, courts consider the cumulative facts and circumstances.

Question 4

Child Custody and Control

Answer 4

Parent who is living, competent, and has not been found unfit is entitled to custody of the minor child and to direct her education and medical care. Standard for determining custody and the parenting time allocation between the parties is the best interest of the child which is determined by examination of all relevant factors including:
● the wishes of the child as to his custodian;
● the interaction and interrelationship of the child with his parents, siblings and any
other person who may significantly affect the child’s best interest; and
● the mental and physical health of all individuals involved.

For a non-parent to seek custody or visitation rights over a child with living parents, significant deference must be given to a legal parent’s objection to visitation (i.e., a finding of parental unfitness or harm to the child would likely satisfy this)
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Question 5

Uniform Interstate Family Support Act (UIFSA)

Answer 5

Uniform Interstate Family Support Act (UIFSA), adopted by all states, provides that a registered child support order is enforceable by any state. Where the enforcing state lacks personal jurisdiction over a party, the UIFSA provides the two-state enforcement process. The enforcement petition can be filed in the non-issuing state. Then, it is forwarded to the issuing state that has personal jurisdiction over the party.

Question 6

Parental Kidnapping Prevention Act (PKPA)

Answer 6

The federal Parental Kidnapping Prevention Act (PKPA) precludes a non-issuing state from modifying a custody order from another state if the child or a party is still
residing in the issuing state and the issuing state does not decline jurisdiction.

Question 7

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which most states have enacted, contains the same limitations on altering custody orders as the federal PKPA.
It provides that It provides that the issuing state has continuing exclusive jurisdiction over a custody order until

Answer 7

(1) the child and all parties have moved out of the state or
(2) the issuing state decides no significant connection remains between the child and the resident and substantial evidence is not present in the issuing state.

Note: Under the Supremacy Clause, the PKPA would take precedence over any conflicting state law.

Question 8

Custody order Modification under the UIFSA
Under UIFSA, custody orders are modified only under what circumstances?

What is an example?

Who bears the burden of proof in a majority view?

Minority view?

Answer 8

significant changes in circumstances have taken place.
Example of a significant change: relocation of one parent that prevents the other parent’s regular contact with the child is a significant change and may result in modification to a custody order.
Standard: and burden: There is no custody change unless it would be in the best interest of the child. The burden is on the parent seeking the change to show the best interest argument and the reason for the change.
A minority view puts the burden on the opposing parent. There is a variation among states. Some require a waiting period of at least two years. There may be a bias toward the primary custodian. Some states may disfavor changes unless the child is at risk. Some states will disfavor change if the move is vindictive.