Rule Statements Flashcards
When is a pre-marital agreement enforceable.
A premarital agreement is enforceable if there has been full disclosure, the agreement is fair and reasonable, and it is voluntary. In addition, the agreement must be in writing and signed by the party to be charged. Any clauses included in a premarital agreement that relate to child custody and support are unenforceable.
What makes a pre-marital agreement unenforceable
Under the Uniform Premarital Agreement Act (UPAA), the party defending against enforcement of a premarital agreement must prove it invalid by clear and convincing evidence. A premarital agreement is invalid if it was (1) involuntary or (2) unconscionable when executed AND the defending party did not have, or reasonably could not have had, adequate knowledge of the other’s assets and obligations due to lack of disclosure.
What is considered to determine if a pre-marital agreement is involuntary?
To determine whether an agreement is voluntary, courts consider factors such as time pressure, the parties’ previous business experience, and the opportunity to be represented by independent counsel. However, a party’s insistence on the agreement as a condition to marriage is not considered duress.
What is the hotchpot approach to marital assets?
A minority of states subject all property owned by either spouse to equitable distribution (i.e., the “hotchpot” approach), but there is no indication this jurisdiction follows the minority rule.
Can adultery be used to gain sole custody of a child?
The standard for determining custody is the “best interests and welfare of the child.” A parents’ sexual conduct is a factor in determining custody only if the parent’s conduct has or will have a negative effect on the child. Here, although Meg was having an affair, there is no evidence that this relationship will have any negative effect on Anna beyond the inherent stress and instability caused by her parent’s divorce. Therefore, the adultery is unlikely to give David grounds to seek sole physical custody of Anna
Other factors considered
Generally, a parent is in the best position to care for a minor child, unless the parent is determined unfit. There is no presumption in favor of the mother. Many courts consider who the primary caretaker of the child was up until the divorce when determining who should have custody. The primary-caretaker consideration not only encompasses the day-to-day care of the child, but also includes the quantity and quality of the time spent with the parent at the time of the hearing, rather than in the past.
