Premarital and Separation Agreements Flashcards
What is a premarital agreement?
Parties can enter an agreement between prospective spouses that is made in contemplation of marriage and that is effective on marriage 25-202(A)
Premarital agreements are enforceable without consideration. 25-202(A).
Premarital agreements may be used by parties to define their rights and obligations in any of the property of either or both, whenever or wherever located. 25-203(A).
Premarital agreements can also contract the disposition of property on separation or marital dissolution (25-203(A)(3).
What is a separation agreement?
Parties can enter into separation agreements that contains provisions for disposition of any property owner by either of them at the dissolution of their marriage. 25-317(A).
What if a person wants to challenge the premarital agreement? What’s the standard and who has the burden?
The person against opposing the use of the Premarital agreement must prove that either (1) they did not execute the agreement voluntarily or (2) that the agreement was unconscionable (25-202(A), (C).
What if a person wants to challenge a separation agreement and who bears the burden?
The court has a duty to review the financial distributions of a separation agreement for unfairness (25-317(B).
Compare the unconscionability standard to the unfair standard.
Comparison – the unconscionability standard applied to premarital agreements imposes a more stringent standard on a party seeking to challenge a premarital agreement. The unfair standard in 25-317 for separation agreements.
Unconscionability is determined when the parties entered the premarital agreement, not at dissolution as with a separation agreement’s unfairness review.
Bonus points – argue that asserting the premarital agreement is unfair incorrectly imposes the demands of 25-317 onto a premarital agreement governed by 25-202. If this argument were to prevail, a premarital agreement could be revoked for being unfair at dissolution, basically every premarital agreement would be unfair.
Can a court rule based on affidavits or avowals?
Depends.
Volk v. Brame (2014) – in this case, the COA overturned Judge Volk’s proceeding by avowal, concluding that a court may not conduct a trial by affidavit if the affidavits are directly in opposition upon any substantial and crucial fact relevant to the grounds for modification.
IF a party agrees to proceed by avowal, that party is prohibited from challenge the sufficiency of the evidence on appeal. The court also noted/cautioned that proceeding by avowal does not allow the court to evaluate the demeanor and credibility of the witnesses.
Contrast with an award of atty fees decided upon submission of briefs only being affirmed, the COA distinguishing Volk by acknowledging that due process requires an opportunity to present sworn testimony if the court addresses “a disputed issue requiring an assessment of credibility.”
Remember where credibility is part o the court’s analysis, cannot be by avowal. But attorney fees assessment – no need for evidentiary hearing. And, where the best interests of the child is an issue, the COA will nearly always decline to find a valid waiver.
Due process entitles a party to notice and an opportunity to be heard at a meaningful time and in a meaningful manner, as well as a chance to offer evidence and confront adverse witnesses.
If the judge cuts your time short, can you appeal?
Only if you object and make a record of what you needed to present but ran out of time to present, and you in fact used all of your time.
What if Wife wants to challenge the premarital agreement and the rule 69 agreement with proof that H offered her $250K for divorce settlement?
Judge can decline. No hearing needed. W only had evidence of her email to attorney saying H promised her. This is not evidence of a material term missing. Since the parties signed a premarital agreement, that was incorporated into the final separation agreement. Unless a party claims the premarital agreement was unconscionable, no hearing is required.
