Prenuptial Agreements

Question 1

Prenuptial agreements

Answer 1

premarital contracts that plan for property rights and spousal support obligations upon divorce;

made prior to marriage that specify certain matters will handled in the event of divorce (economic)

Question 2

Why prenup?

Answer 2

• to alter/limit property rights & support obligations
• ensure seperation of assets
• ensure assets are not divided in equal shares upon divorce

matters with children not applicable

Question 3

Requirements for a valid Pre-nup.

Answer 3

procedural fairness (all states) & substantive fairness (some states)

Question 4

Procedural Fairness

Answer 4

checks to see if parties freely entered into prenup.
- in writing
- disclosure
- consent

Question 5

Disclosure

Answer 5

split in juris.:
- full (detailed) disclosure [or written waiver + adequate knowledge]
- fair & rsbl disclosure [or independent knowledge]

Question 6

Consent

Answer 6

an agreement compliant with requirement of all states would invoke:
1. no fraud, duress, or coercion
2. opportunity to obtain independent counsel
3. understanding of the agreement
4. adequate time to review the agreement

determined by judge

Question 7

Independent Counsel

Answer 7

• no opportunity to obtain independent counsel voids prenuptial agreement
• required for the presumption of validity/consent
• opportunity to obtain counsel is present even if party cannot afford

Question 8

Substantive Fairness

Answer 8

looks at the terms of the agreement
- conscionability

Question 9

conscionability

Answer 9

most states: at the time of the agreement
some states: at the time of enforcement
Unconscionable when it shocks the conscious, extremely unjest, overwhemingly one-sided, contrary to good concious

spousal support clause be unenforcable if spouse likely to become a public charge

Question 10

Revocation

Answer 10

• under the law in most states, if spouses destroyed the agreement in the presence of two witnesses
• or through conduct (vocally okay too)
• Under UPAA. only a written agreement can revoke the intial one (best way)

Question 11

UNEnforcable Non-Econ. Provisions

Answer 11

• confidentiality clauses
• child support
• Religion
• Divorce Waivers

courts dont get involved b/c thats getting involved in family matters
custody is based off childs best interest, not the parents wishes

Question 12

enforcable Non-Econ. Provisions

Answer 12

• Confidentiality Clauses: NDA (inclusion upon seclusion)
• Infidelity Clauses: infidelty (waivement of rights such as prop. or damages)
• Trial Marriage Clauses: clause that provides property to duration of marriage (longer the marriage, the more prop.)