Transcript Marital Contracts and Marriage

Marital Contracts and Marriage
Class #1
Marital and Cohabitation Agreements
Private ordering of public/private relationships
Marital Agreements
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Premarital/Prenuptial/Antenuptial
Postnuptial
Separation
Marital agreements in contemplation
of:
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Death (historical)
Divorce (last few decades)
Subject matter for marital agreements
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Property division
Alimony
Inheritance rights
Rights are responsibilities during marriage
Generally off limits
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Child custody and visitation (parental
responsibility)
Child support
Requirements for valid premarital
(antenuptial) agreements
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Voluntary
Not unconscionable when executed
Full and fair disclosure of assets and
liabilities
Opportunity to consult independent counsel
Florida requirements
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Del Vecchio v. Del Vecchio, 143 So.2d 17
(Fla. 1962)*
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fair and reasonable, or
full and frank disclosure, or
general and approximate knowledge of other
party’s property
competent and independent advice.
*replaced by statute as to rights upon death, but
still cited in divorce setting
Challenges to prenuptial agreements
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Posner v. Posner, 257 So.2d 530 (Fla. 1972)
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inadequate and disproportionate provision for the
a spouse will not vitiate an antenuptial agreement.
freedom to contract includes freedom to make a
bad bargain.
but freedom to contract is not absolute. The
public interest requires that antenuptial
agreements be executed under conditions of
candor and fairness. . . .
Fairness not required
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Belcher v. Belcher, 307 So.2d 918 (Fla. 3d
DCA 1975)
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it is the law of this state that a prospective spouse
has a right to freely choose to enter into an
antenuptial agreement which may be improvident
as to him or her, and the agreement will be upheld
if there has been a full disclosure
Public interest in fairness?
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Limitations on alimony (aka spousal support)
that renders spouse dependent on public
assistance may be declared void as against
public policy
Postnuptial agreements
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Entered into by already married couple
Validity requirements similar to prenuptial
agreements
Not valid everywhere
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Court’s concerned about lack of arms-length
relationship, disclosure issues, etc.
Purpose of postnuptial agreements is
to plan for:
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Death
Divorce
Private ordering of marriage relationship
Separation agreements
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Special type of postnuptial agreement
Provides for property and alimony
arrangement upon separation
Often enforceable in subsequent divorce
case (if general requirements are satisfied)
Reconciliation agreements
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Another special type of postnuptial
agreement
Entered into by couple already separated
Sets conditions for reconciliation and
provides for what will happen if reconciliation
fails
– Division of property
– Alimony
– Other issues related to divorce
Cohabitation agreements
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Attempt to assign marriage-like duties and
responsibilities to non-marital relationships
May be used by those who are legally unable
to marry
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Same-sex couples
Couples where one or both parties remain
married to another person
Validity of cohabitation agreements
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Must be express agreements, will not be
implied from the factual circumstances
Oral agreements hard to prove, harder to
enforce
Written agreements may be enforced in
some states
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If not banned by “meretricious” rules
Other remedies
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Action for fraud
Constructive trust
Quantum meruit (quasi-contract)
Practice issues – Drafting attorney
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High malpractice risk
Focus on disclosure
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Be as complete as possible
Never represent both parties
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Limit contact with non-client party
Insist that other party seek independent counsel,
independent meaning someone you or your client
did not select
Practice issues – Reviewing attorney
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Never recommend that your client sign the
agreement
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Purpose of agreement is to surrender rights that
otherwise exist
Put your “don’t sign” recommendation in
writing and have your client sign an
acknowledge that he/she received it and
understands it
Advice for both attorneys
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Charge enough for this service to make the
malpractice risk worthwhile
Don’t handle the subsequent divorce
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You are likely to be called as a witness on the
validity of the agreement
Marriage
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The new frontier in civil rights?
What is marriage?
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Contract
Status
Both?
Best thought of as a legal status conferred by
the state that has many characteristics of a
civil contract.
Rights (fundamental?) associated with
marriage
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Privacy
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Procreation
Sexual relations
Exercise of religious beliefs
Emotional fulfillment
Financial benefits
Link between marriage and these
rights disappearing?
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Domestic partner benefits from public and
private employers
Domestic partner and civil union statutes in
Vermont (and now California as of 1/1/05)
Access to contraception and sexual privacy
for non-married couples (Eisenstadt v Baird),
but note backward step (Bowers v Hardwick)
Limitations on right to marry
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Existing spouse (prior marriage not
terminated)
Race
Age
Gender/sexual orientation
Relationship to spouse (by blood or
marriage, aka consanguinity or affinity)
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Special note on “first cousin” marriages
One spouse (at a time)
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Are people monogamous, or is it more
accurate to say that we practice “serial
monogamy”?
Formal and informal marriages
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Formal marriage typically requires
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Licensure
Solemnization
Informal marriage (common law)
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Present mutual intent to enter into the legal
relationship of marriage
Some states require a period of “holding out” as
husband and wife.
Putative marriage
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Technically void or voidable due to a defect,
often invalid license
Designed to protect parties and honor their
good faith expectancy interest that they are,
in fact, married despite the defect
Proxy marriage
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This is a type of formal marriage, but with a
“stand-in” or proxy for one of the parties
Recently more common due to Iraq war
Not recognized everywhere
Note: Proxy consummations disfavored!
Florida marriage – ceremonial (formal)
only
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Prior to January 1, 1968, both ceremonial and
common law marriages were recognized in Florida
Any common law marriage entered into after that
date is invalid
If entered into before January 1, 1968, a common
law marriage is valid if the parties were capable of
contracting, a present agreement or consent to be
husband and wife existed, and the marriage was
consummated.
Florida marriage requirements
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Must be 18 years old
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Parental waiver
Judicial waiver
Prior marriage waiver
Can’t be same sex
Can’t marry one’s brother, sister, aunt, uncle,
nephew, or niece
Can’t be prison inmate unless inmate can prove the
marriage will not pose a threat to the inmate's
security or the security and order of the institution
nor to public safety
Premarital preparation course
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Reduces marriage license fee by half
Permits issues of license that is immediately
effective (if no course, then there is three day
waiting period).
Same Sex Marriage
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Massachusetts: Goodridge v Dept of Health*
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Redefining marriage and family, or has society
already done that for us?
In economic terms, is the law a “lagging indicator”
on issues relating to families and marriage?
New right, or belated recognition of existing right?
*See Web site for full text of opinion
Civil Unions and Domestic
Partnerships
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Vermont’s civil union statute
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Parties to a civil union shall have all the same benefits, protections
and responsibilities under law, whether they derive from statute,
administrative or court rule, policy, common law or any other
source of civil law, as are granted to spouses in a marriage.
A party to a civil union shall be included in any definition or use of
the terms "spouse,“ "family," "immediate family," "dependent,"
"next of kin," and other terms that denote the spousal relationship,
as those terms are used throughout the law.
Parties to a civil union shall be responsible for the support of one
another to the same degree and in the same manner as
prescribed under law for married persons.
The law of domestic relations, including annulment, separation and
divorce, child custody and support, and property division and
maintenance shall apply to parties to a civil union.
Annulment of marriage
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Void marriage
Voidable marriage
Void marriage
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Defect that goes to the core of the marriage
requirements
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Lack of consent
Non-age
Another spouse
Relationship by consanguinity or affinity
Marriage is void ab initio, in theory no
judicial action is required
Voidable marriage
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Requires affirmative judicial action to
determine validity or non-validity of marriage
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Grounds are often fraud, deceit, non-disclosure,
infertility (decreasing in importance as a ground
for annulment)
Must go to the “essence of the marriage”
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Routine lies about income, social status, etc., will not be
sufficient
Must relate to the present situation, not future events