Agreements

Question 1

Prenuptial Agreements

Answer 1

Requirements:

1. In writing
2. Signed by both parties
3. Enforceable without consideration

Scope

1. May alter property + ownership rights as well as spousal support
2. May not impact child support or promote divorce (incentivize dissolution)

• Oral agreement enforceable if promissory estoppel/detrimental reliance
• Creditors w/ notice may be bound

Question 2

Involuntary Prenup

Answer 2

To be voluntary, must satisfy all:

1. Opposing spouse was represented by independent legal counsel or waived her right to independent legal counsel in separate writing
2. At least 7 days elapsed between receiving prenup and having to sign
3. If spouse was unrepresented by counsel, she was fully informed of the terms + basic effect of the agreement
4. The agreement was not a product of duress, fraud, undue influence, or incapacity
5. Court may consider any other relevant facts

Question 3

Unconscionable Prenup

Answer 3

At the time the K was executed:

1. Spouse lacked a full, fair, and reasonable disclosure of the property + obligations of other spouse
2. Spouse did not waive disclosure in writing
3. Spouse did not have, nor reasonably could have had, adequate knowledge of other spouse’s property or obligations

Question 4

Unenforceable Spousal Support Provisions

Answer 4

1. If she wasn’t represented by counsel at time of signing; OR
2. At the time of enforcement, the provision was unconscionable.

Question 5

Separation Agreements

Answer 5

May resolve:

1. Property issues
2. Child support
3. Spousal support

May not:

1. Limit statutory obligations re child support
2. Divest the court of jxn

Question 6

Unenforceable Separation Agreements

Answer 6

Unenforceable if:

1. Fraud that prevents spouse from obtaining info/evidence that could be used to defend herself in a lawsuit
2. Mistake
3. Breach of fiduciary duty to spouse
4. Failure to disclose all relevant financial info to the other spouse

Negligence standard applies if negligence attributable to attorney