Premarital Agreements Flashcards
What is a Premarital Agreement?
- A contract before marriage (look to contract law)
- Contains terms that govern property distirbution and spousal support upon divorce or death
- Must be in writing
- Cannot dictate child custody and support
Uniform Premarital Agreement Act (UPAA) proof of unenforceable agreement
Must show at least one:
1. Involuntariness (fraud, duress, coercion, etc.) OR
2. Unconscionability when executed AND lacked reasonable knowledge or disclure of obligations and assets
Voluntary
Premarial Agreements
The parties must have entered into the agreement voluntarily
Ie. No Fraud, duress, or misrepresentation
Courts look to time pressure, parties’ business experience, and opportunity to be indpenedently represented
A party’s insistence on the agreement is a condition to marriage is NOT duress
Fair and Reasonable
Premarital Agreement
Procedural Fairness: duress, undue influence, miscondcut by mediator, independent counsel
Substantive Fairness: fairness of the terms themselves (majority at time of execution of contract; minority look at time of enforcement)
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Current trend is to enforce so long as there was full disclosure, even if not fair
Full Disclosure
Premarital Agreements
Must provide full disclosure of financial status, income, assets, and debts
Separation Agreements
Made between spouses who are planning for divorce and is generally merged into final divorce judgment
Define property division, spousal support, child support, custody, and visitation
May be invalidated (in whole or part) due to unconscionability or fraud
Terms regarding child are ALWAYS modifiable by the court if necessary for best interests of the child
Property-Settlement Agreements
- Settle econ issues of marital estate
- Entered into before divorce decree
- May be invalidated due to unconsciounability or fraud
Conflict of Laws
Premarital Agreements
States will apply either:
1. State where executed or
2. State with most significant relationship to the parties
