Family Law Flashcards
(3 cards)
Determining whether a premarital agreement is enforceable
A premarital agreement is enforceable if there has been full disclosure, it is fair and reasonable, and it is voluntary. 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.
To prevent enforcement under the UPAA, the party against whom enforcement is sought must 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.
Most courts evaluate fairness at the time of execution of the agreement. But, a minority of jurisdictions will evaluate fairness at both the time of execution and at the time of enforcement.
Generally, courts will enforce contractual agreements that may not be fair as long as there has been fair disclosure.
To determine if a premarital agreement is reasonable, the courts consider the parties’ wealth, age, and health.
Even if a valid agreement has been voluntarily executed and it meets the test for reasonableness, fairness, and full disclosure, the agreement may be set aside if its result winds up leaving one spouse woefully impoverished to the extent that he becomes dependent on the state (i.e., welfare).
marital property vs separate property
In most states, all property acquired during the marriage is marital property and subject to equitable distribution. However, most jurisdictions also treat certain property as separate property that is not divisible. Property classified as separate property includes: property acquired before marriage; property excluded by the parties’ valid agreement; property acquired by gift or inheritance; property a party has sold, granted, or conveyed; property to the extent it has been mortgaged or otherwise encumbered in good faith for value before the date of final separation; and any award or settlement payment received.
Is an individual entitled to alimony/spousal support?
The majority of jurisdictions consider a number of factors when determining whether alimony awards are appropriate including: financial resources, standard of living, length of marriage, time it will take for a spouse to find employment or complete training, contributions to marriage, and age, health and marital misconduct (rarely).
