Separation Agreements Flashcards
1
Q
When is a separation agreement valid & enforceable?
A
- if the agreement is:
- in writing
- sihned
- acknowledged or proved in a manner required entitled to deed to be recorded
2
Q
What may the separation agreement include?
A
- a contract
- to make a testamentary provision
- a waiver to elect against the will
- Provisionfor the ownership, division, distribution of separate & marital property
- Provisions for the amount & duration of maintenance provided such terms are fair & reasonable and not unconsciouable @ time of final judgment
- provision for custody, care, education & maintenance of the child(ren) of the parties
3
Q
How does fraud, duress & lack of capacity effect a separation agreement?
A
- separation agreement may be set aside
- challeneged on the basis of fraud, concealment of networth
- involve fiduicary relationships & require the utmost of good faith
4
Q
How do you determine whether the provisions of a separation agreement are “fair & reasonable” (the validity)?
A
- ct consider the financial position of the ptys
- cannot require the dissolution of marriage
- cannot precure grounds for divorce
- cannot cause the financially weaker spouse to become incapable of self support & therefore likely to become a public charge
- a sngle atty represent both subjects it to strict scrutiny
- valid agreement bars action for separation & alimony BUT does not bar action for divorce
- any action to co-habitate w/intent to reconcile destroys the agreement
- a pty who accepts the benefits of a separation agreement may not later challenge its validity
5
Q
How is the separation agreement merged into the divorce decree?
A
- can merge into the divorce decree:
- terms are not changed
- other pty can disaffirm for fraud, over reaching or the like
- If merged, it is no longer enforceable as a K oblifation
6
Q
How can the separation agreement be incorporated?
A
- survives the judgment of divorce and is incorporated by reference
7
Q
How is the separation agreement modified?
A
