Premarital Agreements Flashcards
What are Premarital Agreements used for
Used to resolve disputes between spouses in the event of divorce, as well as a means for estate planning in the event of death
General rule for validity of Premarital Agreements
Generally valid in writing and signed by the parties.
Rule for invalidating Premarital Agreements
In most states, when the court finds either:
procedural unfairness in the making of the agreement, or
substantive unfairness in the agreement itself
***UPAA (uniform premarital agreement act) requires both
Factors of Procedural Unfairness in making of Premarital Agreements
the fullness of disclosure of net worth;
the availability of independent counsel or knowing and voluntary waiver of such representation;
the timing of the presentation of the agreement, giving sufficient time to review before the wedding; and
the relative bargaining power of the parties, and their relative levels of financial or legal knowledge.
Factors of Substantive Unfairness in Premarital Agreements
In most states, substantive unfairness requires a finding that the premarital agreement’s terms or impact are substantively unfair. Arguably, this standard is less demanding than an “unconscionability” standard.
**NOTE: The UPAA view examines only the circumstances surrounding the execution of the agreement, not its fairness at the time of enforcement. In contrast, some states will evaluate fairness at the time of contract enforcement as well as at formation.
Rule on Waiver of Alimony in Premarital Agreements
Modern trend, permits waiver of alimony by agreement but some states will not.
Even when permissible, states tend to more closely scrutinize agreements waiving spousal support upon divorce
Impermissible provisions in Premartial Agreements
In most states, provisions on (1) sexual relations (2) child-bearing and (3) child support obligations are not enforceable.
