Premarital Agreement

Question 1

When can oral premarital agreement be enforced?

Answer 1

Normally, SOF requires that premarital agreement be signed.

Exceptions:
(a) Promisor actually performed promise [Full Execution]
(b) Promisee relied to detriment on oral premarital agreement [Estoppel]

Question 2

When are premarital agreements unenforceable?

Answer 2

(a) Not voluntary, or
(b) Unconsionable

Note: Premarital agreements also can’t promote divorce (give spouse a positive incentive to get divorce)

Question 3

When are premarital agreements “voluntary” (and therefore enforceable)

Answer 3

Court finds that party challenging agree:
(i) was represented by counsel OR waived right in writing
(ii) if not represented by counsel, was fully informed in writing of terms/basic effect of agreement AND executed document declaring they received this info, and
(iii) was given at least 7 days to review/sign agreement.

Question 4

What are the two types of unconscionability claims?

Answer 4

(a) Spousal Support provision/agreement
(b) Other provision/agreement

Unconscionability is matter of LAW (decided by judge, not jury)

Question 5

When is spousal support provision/agreement unenforceable due to unconscionability?

Answer 5

(a) party challenging agreement didn’t have independent legal counsel when signing it
(b) even if party had counsel when signing, provision was unconscionable at time of enforcement

Question 6

When are other premarital agreements unconscionable?

Answer 6

(i) Lack of full and fair disclosure of other party’s property or financial obligation
(ii) Party challenging didn’t have adequate knowledge of other party’s property or financial circumstances
(iii) Right to disclose never waived in writing

Question 7

Before 1985, what was required to transmute property?

Answer 7

Oral transmutation was sufficient, whether by express agreement or agreement-in-fact

Question 8

After 1985, what is required to transmute property?

Answer 8

(i) Written, express declaration that character of property is being changed
(ii) Consent of spouse whose interest is adversely affected

Question 9

Does the in-writing requirement for transmutations apply to gifts between spouses?

Answer 9

No, as long as gifts are of a personal nature and insubstantial in value

“Insubstantial in value” depends on financial circumstances of marriage (ex. low-income spouses vs. Bill Gates)

Question 10

Is a person seeking divorce bound by a description of a property’s character in his will or inter vivos trust?

Answer 10

No. If will/trust says all property is CP, this can’t be used as evidence of written transmutation agreement (not all property is CP).