Family Law Outline

Family Law Spring 2009
Chapter 1: Marital and Cohabitation Agreements
A. Martal Agreements
–          Originally Prenups were viewed against public policy if they determined alimony or child support
–          This changed in the 1970’s Posner v. Posner
–          What kind of person wants a prenuptial agreement:
(1)    wealthy people
(2)    Older person- because they want to make sure their assets are going to the right person
a.       Or second marriage and have kids from previous marriage
(3)    People who are prior divorced
–          Statute of Frauds-  Prenups are subject to the statute of frauds which require a writing and signed by both parties. Premarital agreements can be entered into and valid without consideration.  The marriage is considered the consideration.
–          If prenup says full disclosure has been made, this argument can only be rebutted by clear and convincing evidence
 
 
Fletcher v. Fletcher
Facts:
One day before the wedding the parties entered a prenuptial agreement and after 7 years of marriage the wife asserted that the agreement was obtained by fraud and duress and was invalid. Test for validity of Prenuptial agreements:
(1)    they have been entered into freely without fraud, duress, coercion, or overreaching (voluntarily entered into it)
(2)    if there was full disclosure of the prospective spouse’s property AND
(3)    if the terms do not promote or encourage divorce or profiteering by divorce
(4)    reasonable opportunity for a lawyer
 
Simeone v. Simeone
–          FACTS:  nurse marries neurosurgeon; eve of the wedding, neurosurgeon’s attorney presented nurse with a prenuptial agreement; nurse, without the advice of a lawyer, signed the agreement
–           overrules Estate of Geyer
–           instead of allowing courts to look at reasonableness of the contract at the time of inception or execution, a court may now only look to whether there was full and fair disclosure of the  financial positions of the parties
–          Rule: if an agreement provides that full disclosure has been made, a presumption of full disclosure arises.  If a spouse attempts to rebut this presumption through an assertion of fraud or misrepresentation then this presumption can be rebutted if it is proven by clear and convincing evidence.
Bellio v. Bellio
–          Wife contends that the trial court erred in refusing to enforce a premarital agreement requiring husband to pay her $100,000 upon a divorce.  Reversed
–          Holding- this agreement was a realistic planning on the part of the parties
 
 
Uniform Premarital Agreement Act:
–          Adopted by IL and a number of other states:
a)      A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:
1) That party did not execute the agreement voluntarily; or
2) The agreement was unconscionable when it was executed and, before execution of the agreement, that party
                                                         i.            Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party
                                                       ii.            Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
                                                      iii.            Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party
b)      If a provision of the premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court,, notwithstanding the terms of the agreement, may require the other party to provide support necessary to avoid the eligibility
c)       An issue of Unconscionability of a premarital agreement shall be decided by the court as a matter of law
 
Illinois Uniform Premarital Agreement Act:
–          Prenups can include the modification and elimination of spousal support
–          The choice of law
–          The making of a will or trust to carryout the agreement
–          Ownership rights of death benefits of a life insurance policy
–          CHILD SUPPORT AND CHILD CUSTODY MAY NOT BE ADVERSELY AFFECTED BY A PREMARITAL AGREEMENT
–          Prenups may be amended or revoked only by a written agreement
–          You cannot make an agreement towards other conduct in the marriage.
–          IE; sex 4 times a week
–          You can have a clause stating “what is in the best interests of the other person/child” but you can’t make a specific statement as to how someone for example, will be raised
–          A prenup can be amended after the marriage as long as the amendment is signed by both parties.
 
 
 
§ 750 ILCS 10/7.  Enforcement
(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:
                (1) that party did not execute the agreement voluntarily; or
                (2) the agreement was unconscionable when it was executed and, before execution of the agreement, that        party:
                                (i) was not provided a fair and reasonable disclosure of the property or financial obligations of                                   the other party;
                                (ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or                                 financial obligations of the other party beyond the disclosure provided; and
                                (iii) did not have, or reasonably could not have had, an adequate knowledge of the property or                                                 financial obligations of the other party.
(b) If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement undue hardship in light of circumstances not reasonably foreseeable at the time of the execution of the agreement, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid such hardship.
(c) An issue of Unconscionability of a premarital agreement shall be decided by the court as a matter of law.
 
Pysell v. Keck (in the hand out page 5)
**If have a prenup and a will that gives up rights to other spouses property- because the prenup never used the word DEATH then the wife would be able to get some property from her dead husband because the prenup never mentions death.
–          so when  you draft that prenup make sure to think of all major situations in drafting the language of it.
 
Requirements to give up your right to your spouse's pension benefits and ERISA Rights
1. spouse gives up in writing
2. designates a beneficiary
3. acknowledge effects
4. has to be witnessed
–          The new beneficiary can be changed again without the knowledge of the spouse
 
Melton v. Melton- Illinois
–          guy is killed and gives up his rights to the pension benefits.  The court said that you can waive it in a marital set