Agreements Flashcards
1
Q
Prenuptial Agreements
A
Requirements:
- In writing
- Signed by both parties
- Enforceable without consideration
Scope
- May alter property + ownership rights as well as spousal support
- May not impact child support or promote divorce (incentivize dissolution)
- Oral agreement enforceable if promissory estoppel/detrimental reliance
- Creditors w/ notice may be bound
2
Q
Involuntary Prenup
A
To be voluntary, must satisfy all:
- Opposing spouse was represented by independent legal counsel or waived her right to independent legal counsel in separate writing
- At least 7 days elapsed between receiving prenup and having to sign
- If spouse was unrepresented by counsel, she was fully informed of the terms + basic effect of the agreement
- The agreement was not a product of duress, fraud, undue influence, or incapacity
- Court may consider any other relevant facts
3
Q
Unconscionable Prenup
A
At the time the K was executed:
- Spouse lacked a full, fair, and reasonable disclosure of the property + obligations of other spouse
- Spouse did not waive disclosure in writing
- Spouse did not have, nor reasonably could have had, adequate knowledge of other spouse’s property or obligations
4
Q
Unenforceable Spousal Support Provisions
A
- If she wasn’t represented by counsel at time of signing; OR
- At the time of enforcement, the provision was unconscionable.
5
Q
Separation Agreements
A
May resolve:
- Property issues
- Child support
- Spousal support
May not:
- Limit statutory obligations re child support
- Divest the court of jxn
6
Q
Unenforceable Separation Agreements
A
Unenforceable if:
- Fraud that prevents spouse from obtaining info/evidence that could be used to defend herself in a lawsuit
- Mistake
- Breach of fiduciary duty to spouse
- Failure to disclose all relevant financial info to the other spouse
Negligence standard applies if negligence attributable to attorney
