Flashcards in 1 - before marriage Deck (10)
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.
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?)
(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
Many states have adopted the Uniform Premarital Agreements Act (UPAA).
rights of parties
Premarital agreements address the rights of the parties in the event of death or divorce.
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.
Courts cannot be bound by provisions in the premarital agreement regarding children. (must be BIOC)
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)
Some courts will consider general FAIRNESS and whether the parties were represented by INDEPENDENT COUNSEL.