Prenups

Question 1

Premarital Agreement (Prenup)

Answer 1

Devises to resolve disputes between spouses in the event of divorce, as well as a means for estate planning in the event of death.

Question 2

Prenup Req.

Answer 2

Most states require prenups to be in writing and signed by the parties.

Question 3

Enforceability of Prenups (Invalid Prenups)

Answer 3

In most states, a premarital agreement will be invalidated when there is a court finding of either:

• procedural unfairness in the making of the agreement; or
• substantive unfairness of the agreement itself

Question 4

Procedural Unfairness (Important Factors)

Answer 4

Include:

• the fullness of disclosure of one’s net worth
• the availability of independent counsel or knowing and voluntary waiver of such rep.
• the timing and 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

Question 5

Procedural Unfairness: Adequate Disclosure (When it is Not Required)

Answer 5

In general, there must be fair and reasonable disclosure by both parties concerning each party’s property and financial obligations. But disclosure might not be required if:

• there has been a voluntary waiver of this disclosure req.; or
• a spouse has knowledge of or access to financial circumstances of the other spouse

Question 6

Procedural Unfairness: Voluntariness

Answer 6

All parties must voluntary agree to a prenup. Potential defenses to voluntariness include fraud, misrepresentation, or duress (e.g. making the other spouse sign it the day of the wedding).

Question 7

Important Factors for Determining the Voluntariness of Signing a Prenup

Answer 7

Courts look at the cumulative facts and circumstances such as:

• timing
• availability
• counsel
• language
• one of these factors alone will not be enough

Question 8

Substantive Unfairness

Answer 8

Most states hold that there is substantive unfairness if the premarital agreement’s terms or impact are substantively unfair.

Question 9

Unfairness: Majority Approach v. Minority Approach

Answer 9

• The majority UPAA approach looks at the fairness at time of execution only
• The minority approach looks at fairness at time of K enforcement as well as at formation

Question 10

UPAA Approach to Unfairness

Answer 10

If you are told that a jurisdiction follows the UPAA, this approach claims that a premarital agreement becomes unenforceable if:

• there was a lack of voluntariness; or
• the court finds that there was lack of adequate disclosure (procedural unfairness); and the agreement was unconscionable (at time of signing).

Question 11

UPAA Approach: When an Agreement is “Unconscionable”

Answer 11

When there is a large disparity in sophistication and resources that results in one-sided agreement due to inequity in bargaining power.

Question 12

SM of Prenups: Property Division

Answer 12

Agreements concerning property division are permissible.

Question 13

SM of Prenups: Waiver of Alimony

Answer 13

• The majority view –> permits waiver of alimony by agreement
• The minority view –> does not allow waiver of spousal support

Question 14

SM of Prenups: Children

Answer 14

In virtually all states, it is invalid as against public policy for a premarital agreement to abrogate, or even limit, the obligation of a parent to support his or her minor children during or after the marriage. Same thing goes for the UPAA.

Question 15

SM of Prenups: Sexual Relations

Answer 15

In most states, provisions dealing with the frequency of sexual relations and child-bearing are not enforceable.