1 - before marriage Flashcards Preview

Bar prep - family law > 1 - before marriage > Flashcards

Flashcards in 1 - before marriage Deck (10)
Loading flashcards...
1

breach of the promise to marry

1. Rare today
2. Provides for TORT damages, including actual damages as well as loss to reputation and mental anguish. Punitive damages also available.

2

gifts in contemplation of marriage

1. Gifts made CONDITIONAL on the subsequent marriage, like engagement rings, are null if the marriage fails to take place.
2. Consider the type of property given, the conditions attached, and the intent of the donor. (bday gift, stereo b/c of marriage?)

3

Antenuptial agreements
(premarital or prenuptial agreements)

1) UPAA, 2) rights of parties, 3) property and alimony upon divorce, 4) children, 5) requirements for validity, 6) fairness, 7) state law to apply

4

Prenups
UPAA

Many states have adopted the Uniform Premarital Agreements Act (UPAA).

5

Prenups
rights of parties

Premarital agreements address the rights of the parties in the event of death or divorce.

6

Prenups
property and alimony upon divorce

Parties can agree to the disposition of property at divorce and to alimony. Generally, waiver of alimony will be upheld UNLESS doing so will cause the disadvantaged spouse to become a public charge.

7

Prenups
children

Courts cannot be bound by provisions in the premarital agreement regarding children. (must be BIOC)

8

Prenups
requirements for validity

For a premarital agreement to be valid, it must be :
1. in writing and signed
2. entered into voluntarily (no fraud, duress, or overreaching
3. with full disclosure of assets OR proof that the party had independent knowledge.
Note: Under the UPAA, the court must determine first that the agreement was unconscionable when executed and then whether there was a fair disclosure of assets or independent knowledge (also consider waiver)

9

Prenup
fairness

Some courts will consider general FAIRNESS and whether the parties were represented by INDEPENDENT COUNSEL.

10

Prenup
state law to apply

Parties can agree on state law to apply.
If not, apply 1) the law of the state with the most significant relationship to the parties and the transaction OR
2) the law where the agreement was executed.