Select Page

Family Law
University of Dayton School of Law
Crist, Maria Perez

FAMILY LAW OUTLINE

I. Getting married

1) Prenuptial agreements/Premarital Agreements
▪ These are agreements/contracts between prospective spouses made in contemplation of the marriage and typically require a party to limit or relinquish certain rights (e.g. property rights or spousal support) that the party would have acquired by reason of the marriage. They generally concern two issues: 1) matter of spousal rights in the event of death of the other 2) possibility of future divorces.

a) Addresses these issues, giving up the rights to:
i) take property from the deceased spouse’s estate
ii) dispute the will of a deceased spouse
iii) claim ownership of specific property that would ordinarily be considered marital property in the event of divorce
iv) seek financial support from the other spouse if divorce
v) can alter spousal support.
(1) Exceptions- Issues they can’t address
(a) control the sharing of expenses between spouses during the marriage
(b) limit child support
(c) award custody
(d) force the partner to live a particular lifestyle—i.e. requiring a spouse to take out the garbage.
b) Requirements
i) Formalities
(1) Must be in writing
(2) fair consideration in exchange for the waiver of rights of inheritance or other statutory rights
ii) For it to be valid:
(1) must be entered into only after full disclosure of holdings- but doesn’t have to be detailed
(2) Fair and reasonable- Courts differ in their determination of this.
(a) Factors relevant to determine reasonableness
(i) Parties respective wealth
(ii) respective ages
(iii) respective intelligence, literacy, and business acumen
(iv) prior family ties or commitments
(b) Only time when judge will determine not fair and reasonable is when the contesting party is stripped of substantially all marital interest and therefore not valid.
(c) Agreement has the same validity at the time of divorce as when at the time of its execution.
(d) UPAA- Uniform Premarital Agreement Act\
▪ almost half of the states adopted this or some version of it.
▪ Need proof of both substantial and procedural fairness (disclosure and voluntariness requirement)
(i) Policy: To recognize considerable contractual freedom as long as the ensuing agreements do not violate public policy
(ii) Requires a higher standard than previously in order to find the agreement u

by the agreement of two people, but which is only recognized as a valid marriage when it meets certain requirements defined by the state.

b) Constitutional Limitations on regulation of the right to marry: SC established that the right to marry is a fundamental right. As a result, state restrictions on the right to marry are subject to strict scrutiny (highest level of protection for the individual’s freedom to marry).

i) 3 different tests for looking at the constitutionality of state statutes, regulation, practices
(1) Rational basis test: Lowest level of scrutiny, restriction must be reasonably related to a legitimate state objective
(2) Intermediate level (substantially related to a governmental interest, srigo test): requires restriction must be substantially related to an important governmental objective
Strict scrutiny test: restriction must be necessary to a compelling state interest in order to survive constitutional challenge