Family Law
Professor Thurman
I. Marital and Cohabitation Agreements
A. Marriage
1. both a status and a contract
a. Parties to a marriage contract are the husband, wife and the state
b. State has an interest in marriage based on the importance of the family in society
i. Procreation
ii. Children – support, education, care
iii. Property and how it is taxed
2. State Prescribes to:
a. The right to marry
b. Divorce
B. Marital Agreements
1. three part test (elements)
a. voluntary – entered into freely without fraud, duress, coercion, or overreaching
b. full disclosure of advantaged party or full knowledge of disadvantaged party
i. nature, value and extent of property
ii. rights being effected
c. terms cannot promote or encourage divorce or profiteering by divorce
2. Fletcher v. Fletcher
a. Rules:
i. A party financially disadvantaged by antenuptial agreement providing disproportionately less than equitable distribution must have meaningful opportunity to consult with independent counsel; and
ii. The presentation of an agreement a very short time before the wedding ceremony will create a presumption of overreaching or coercion if, the postponement of the wedding would cause significant hardship, embarrassment or emotional stress.
iii. Burden of Proof
1) burden is on the one claiming validity when agreement provides disproportionately less that the party challenging it would have received under an equitable distribution
a) must show other party entered into it with full knowledge or disclosure of the assets
2) burden is on the party challenging the invalidity of agreement based on fraud, duress, coercion or overreaching
3) Reasons for burden shifting:
a) the fiduciary relationship of the parties
i) a relationship of mutual trust and confidence
b) antenuptial agreements negate the statutorily defined presumptive rights of a spouse to an equitable distribution of marital assets upon divorce
iv. Gross v. Gross – Enforceability of antenuptial agreements;
1) Gross Test (similar to DelVecchio): Such agreements are valid:
a) If they have been entered into freely without fraud, duress, coercion, or overreaching
b) If there was full disclosure, or full knowledge and understanding of the nature, value and extent of the prospective spouse’s property; and
c) If the terms do not promote or encourage divorce or profiteering by divorce
b. Pension Benefits-ERISA requires a waiver of spousal benefits to be signed by a spouse. Therefore rights to spouse pension cannot be waived in a pre-nuptial agreement; it must be waived postnuptially.
3. FS 725.01 Statute of Frauds
a. Antenuptial agreements are subject to the Statute of Frauds. Promises made in contemplation of marriage, other than promises to marry, to be in writing and signed by the party to be charged
4. FS 732.702(2) Waiver of Right to Elect and of Other Rights (1974)– Probate Code – overrules disclosure required in DelVe
Wife’s needs (but is actually gender neutral)
g) Factors that show whether the agreement was understandingly made
c. An antenuptial agreement that is disproportionate on its face indicates a presumption of concealment and the burden shifts, and it is incumbent upon the husband to prove validity
6. Weintraub v. Weintraub – Validity of Antenuptial Agreement in Dissolution (FL 1982)
a. Issue: Does FS 732.702(2)(1974) validate premarital agreements otherwise invalid under DelVecchio (1970) when the agreement is questioned on grounds of non-disclosure in a marriage dissolution or other proceedings affecting property during the lifetimes of the spouses?
b. Rule: DelVecchio is upheld. If the agreement makes a fair and reasonable provision for the less financially secure party it is presumptively valid. In the absence of a fair and reasonable provision, the agreement may still be upheld if the less secure party entered into it with an understanding of the rights being waived. Such an understanding can be assumed if the less secure party had knowledge of the assets of the wealthier party.
i. Knowledge may be obtained either directly through a disclosure by the wealthier party or indirectly from other sources
