FAMILY LAW OUTLINE
I. Marital and Cohabitation Agreements
A. Premarital Agreements
1. Basic Information
-also called antenuptial or prenuptial agreements
-most often used when prospective spouses wish to contractually vary, limit, or relinquish marital property and support rights that they might otherwise acquire by their impending marriage
-when parties get divorced, usually is an equitable division of property gained during marriage
-marital property → whatever is generated by either spouse during the marriage
2. Traditional View
-prenup could only affect property rights on death of spouse (i.e. no divorce provisions as it promoted divorce)
-recognized as valid kt and enforceable ONLY if:
1. if they have been entered into freely and voluntarily w/o fraud, duress, coercion ,or overreaching
-overreaching: one party outwitting or cheating the other by artifice or cunning, or by exploiting a significant disparity in understanding the nature of the transaction
-if this is going to cause some major delay of postponing the wedding, then it can be a presumption of overreaching
2. if there was full disclosure, or full knowledge and understanding of the nature, value and extent of the prospective spouse’s property
3. if the terms do not promote/encourage divorce or profiteering by divorce
4. implied element: meaningful opportunity for lawyer to review prenup and advise client
-disadvantaged party must have a meaningful opportunity to consult w/ counsel
-agreement must meet Statute of Frauds
-prenup NOT have be fair so long as full disclosure made
3. Modern View
-contingent divorce planning in prenups were not judicially declared invalid per se; validity tested by objective intent of the contracting parties themselves
4. Uniform Premarital Agreement Act
-judicial confusion over which approach to take, so use this
-not include unmarried cohabitants, postnuptial or separation agreements or oral agreements
1. Section 1 – defines premarital agreement as “an agreement btwn prospective spouses made in contemplation of marriage and to be effective upon marriage”
2. Section 2 – requires that prenup be in writing and signed by both spouses
3. Section 3 – deals w/ content (child support rights may not be adversely affected by prenup)
4. Section 4 – provides that the agreement becomes effective upon marriage
5. Section 5 – states that after marriage, the prenup may be amended or revoked by a written agreement signed by the parties
6. Section 6 – KEY OPERATIVE section; sets for conditions under which the prenup is NOT enforceable if the party against who enforcement is sought proves:
(1) the party did not execute the agreement voluntarily; OR
(2) the agreement was unconscionable when it was executed if a party
(a) was not provided a fair and reasonable disclosure of the property or financial obligations of the other party
(b) did not voluntarily and expressly waive, in writing, any disclosure of property or financial obligations of the other party beyond the disclosure provided; AND
(c) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party
-NOTE: §6 does NOT expressly require independent counsel for the less empowered spouse, b/ lack of that assistance may be factor in determining whether the conditions in §6 existed
-NOTE: if prenup causes one party to be eligible for public aid…a court may require the other party to provide support to the extent necessary to avoid public aid
5. Illinois Premarital Agreement Act – 750 ILCS 10/1-11
-same as Uniform Premarital Act EXCEPT:
-§7(b) – if prenuptial modifies/eliminates spousal support and the elimination causes undue hardship (not public assistance) in light of circumstances not reasonably foreseen…the court may require the other party provide support to the extent necessary to avoid such hardship
1. 750 ILCS 10/2 – Definitions
-premarital agreement → agreement btwn prospective spouses made in contemplation of marriage and to be effective upon marriage
-property → means an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings
2. 750 ILCS 10/3 – Formalities
-premarital agreement MUST be in writing and signed by both parties; enforceable w/o consideration
3. 750 ILCS 10/4 – Content
-parties to a premarital agreement may contract w/ respect to:
(1) rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located
(2) right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property
(3) disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event
(4) the modification or elimination of spousal support
(5) the making of a will, trust, or other arrangement to carry out the provisions of the agreement
(6) the ownership rights in an disposition of the death benefit from a life insurance policy
(7) the choice of law governing the construction of the agreement
(8) any other matter, including their personal rights and obligations, not in violation of public policy or statute imposing a criminal penalty
-the right of a child to support may not be adversely affected by a premarital agreement
4. 750 ILCS 10-5 – Effect of Marriage
-premarital agreement becomes effective upon marriage
5. 750 ILCS 10/6 – Amendment; Revocation
-after marriage, premarital agreement may be amended or revoked only by written agreement signed by the parties
-amended agreement or revocation IS enforceable w/o consideration
6. 750 ILCS 10/7 – Enforcement
-premarital agreement is enforceable if the party against whom the enforcement is sought PROVES that:
1. that party did not execute the agreement voluntarily; OR
2. that the agreement was unconscionable when it was executed and, before execution of the agreement, that party
a. was not provided a fair and reasonable disclosure of the property or financial obligation of the other party;
b. did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligation of the other party beyond the disclosure provided; AND
c. did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party
-if a provision of a premarital agreement modifies/eliminates spousal support and that modification/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
-an issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law
-if unconscionable, b/ there is a full disclosure of assets, then it will absolve the unconscionability of the agreement that they first signed
-UPAA section (b) was seen as too harsh in IL, so in 10/7(b), “Undue Hardship” is used instead of public assistance
7. 750 ILCS 10/8 – Enforcement-Void Marriage
-if a marriage is determined to be void, an agreement that would otherwise have been a premarital agreement is enforceable ONLY to the extent necessary to avoid an inequitable result
8. 750 ILCS 10/9 – Limitation of Actions
-any statutes of limitation applicable to an action asserting a claim for relief under a premarital agreement is tolled during the marriage of the parties to the agreement; b/ equitable defense limiting the time for enforcement, including laches and estoppel, are available to either party
6. 750 ILCS 503 – Disposition of Property (Marital v. Non-Marital Property)
-503(a): what is marital property?
-marital property: whatever come into possession of after the marriage
-non-marital property includes:
(1) after get married, one of parents gives you something, say a car, that’s yours; also inheritance is yours only;
(2) if own something before marriage, say apartment building and generating income from that, then get married, building stays yours
(3) property acquired after judgment of legal separation; legal separation makes property acquired after that separation to be non-marital property (b/ must be legal separation)
Marry
-gifts made in contemplation of marriage are usually understood to be conditional upon the marriage taking place and may be recovered if it does not
-in many jurisdictions, donor who breaks an engagement w/o justification is not permitted to recover a gift such as a ring
-3 different ways of looking at whether she should give ring back:
(1) if mutual breakup, then ring goes back
(2) if not mutual, and he’s at fault (he’s ending it) then she gets to keep ring; since now have no fault divorce, then don’t want to figure out whose at fault here either
(3) many times in no fault states, won’t look at who’s ended, just say marriage was condition of promise, and that not occur, so ring goes back
1. 740 ILCS 15/1 – Breach of Promise Act
-still 9 states where can sue for alienation of affection (IL included) – almost identical of breach of promise act
2. 740 ILCS 15/2 – Actual Damages Only
-damages to be recovered in any action for breach of promise/agreement to marry shall be LIMITED to the actual damages sustained as result of injury complained of
3. 740 ILCS 15/3 – Punitive, Exemplary, Vindictive or Aggravated Damages NOT Recoverable
-NO punitive, exemplary, vindictive, or aggravated damages shall be allowed in any action for breach of promise to marry
4. 740 ILCS 15/4 – Notice Required Before Bringing Action for Breach of Promise
-w/in 3 months from date that breach of promise occurred, unless such breach occurred prior to the effective date of the act, any such person who is abt the commence any civil action in any ct for breach of promise to marry shall give the person against whom said action is to be brought, or send to such person notice in writing, signed by the person who is abt to commence said action, giving the date upon which the promise/agreement to marry was made, and date upon which the ceremony was to have been performed, stating the damages suffered by the person signing said notice and stating whether that person signing said notice is or is not still willing to marry the person to whom the statement is given
-i.e. have to give actual notice; has to be done w/in certain time; notice of when engagement began; what damages have been suffered by breach
5. 740 ILCS 15/5 – Action Barred Unless Notice Given
-if notice provided for by §4 is NOT given as provided, any such civil action for breach of promise to marry shall be DISMISSED and the person to whom any such c/a accrued shall be FOREVER barred from further suit
6. 740 ILCS 15/6 – Limitations
-actions on promises or agreements to marry shall be commenced w/in 1 YEAR after the cause of action accrued
16. Alienation of Affections
-9 states allow (including IL)
-remedies provided by law for intentional invasion of the martial relationship and interference w/ consortium
-proof that there was an actual alienation that occurred and prove by clear and convincing evidence
-elements of c/a:
-some wrongful conduct by ∆ w/ Π’s spouse
-loss of affection of Π’s spouse, or loss of consortium
-causal relationship btwn ∆’s conduct and the loss of consortium
-common cases: where relative of one spouse breaks up marriage by giving advice; if acted maliciously in giving advice, then likely liable for alienation
17. Postnuptials
-during course of marriage that couple makes agreement (i.e. to make promise or exchange of property)
-this is a fiduciary relationship
-will be looked at in scrutiny to make sure there was no undue influence (freely and voluntarily entered into)
