Family Flashcards
(3 cards)
premarital agreement - child custody and support
A court may always modify child support or custody provisions in a marital agreement, even if the agreement states that modification is not permitted. Thus, the majority of jurisdictions find that clauses relating to child custody and support are unenforceable. Instead, the court will make an independent decision based on the best interests of the child.
UPAA requirements / preventing enforcement
To prevent enforcement of a premarital agreement, the UPAA (Uniform Premarital Agreement Act) requires that the party against whom enforcement is sought prove (i) involuntariness, or (ii) that the agreement was unconscionable when it was executed, that she did not receive or waive fair and reasonable disclosure, and she “did not have, or reasonably could not have had, an adequate knowledge” of the other’s assets and obligations. The agreement must be in writing and signed by the party to be charged. Premarital agreements must provide full disclosure of financial status, including income, assets, and liabilities of all parties. Absent full disclosure, a court will generally refuse to enforce the agreement. Most courts evaluate fairness at the time of the execution of the contract. The current trend is for courts to enforce contractual agreements that may not be fair as long as there has been fair disclosure. To be voluntary, the parties must enter in the contract free of fraud, duress, or misrepresentation. A party’s insistence on the agreement as a condition to marriage is not considered duress on its own. Entering into a contract voluntarily generally means there was no fraud, duress, or misrepresentation. Courts consider factors such as time-pressure, the parties’ previous business experience, and the opportunity to be represented by independent counsel
