Agreements Flashcards
(34 cards)
When do you use parol evidence?
Only when language is ambiguous
When do you use Casto test?
Prenups before 10/1/07 or postnups
Does Casto apply to MSAs?
No.
When do Casto and UPAA apply?
Casto before 10/1/07, UPAA after
How do you rebut the Casto test?
Full/frank financial dislcosure
OR
General knowledge of financial picture
Judge has parties read agreement/MSA onto record in court. Valid?
ONly if accompanied by sworn testimony
What can a PNA not waive?
Temp support Temp fees Child support TS Post-dissultion fees for BIC
SOL to enforce FJDOM incorporating MSA?
20 years
SOL to set aside MSA in FJDOM?
1 year per 12.540 UNLESS fraudulent FA.
What is definition of ambiguous?
Rationally susceptible to more than 1 interpretation
What is a latent ambiguity?
Clear language, but add one fact and there’s more than one meaning
Standard of review for validity of MSA?
De novo.
What is novation?
Mutual agreement to substitute an existing deal with a new deal.
What are factors for novation?
Old K
Agreement to new K
Extinguish old K
Valid new K
H/W have written PNA from 2013. W says I dont need alimony any more, and H stops paying. Is this a novation?
NO, must be in writing per UPAA
Can you abandon an MSA under UPAA?
Only if in writing.
How do you prove abandonment?
One party act inconsistent with deal, and other acquiesces.
*must plead affirmative defense
How do you attack pna under CASTO?
1- proceudred by FDDCOM, fraud, duress, deceit, coercion, misrep, overreaching
2 - OR, unfair/unreasonable
You attack an MSA for being unreasonable. if you prove your case, what happens next?
Presumption of concealment or lack of knowledge
Can be defeated via full/frank disclsoure or general knowledge
H/W have prenup. W says I didn’t have counsel, it’s unfair. Court rules?
Too bad, counsel not required.
H says “sign PNA or no wedding.” Duress?
No.
H/W enter MSA. 6 months later, W says lack of knowledge. Wnats to set aside. Ruling?
Deny. Lack of konwledge doesn’t apply to negotiated MSAs.
Under UPAA, what is required?
In Writing
Signed by both
How do you set aside Prenup under UPAA?
Not voluntary
OR Fraud, duress, coercion, overreaching
OR Unconscionable AND disclosure issues
