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Family Law
University of Iowa School of Law
Estin, Ann Laquer

Martial and Cohabitation Agreements
Monday, January 11, 2010
10:40 AM
Martial Agreements
·         General Principles
o    Background
·         At common law, they did not allow prenuptial agreements to control the disposition of property
·         However, at the 1970s, they did begin to allow it
o    Test
·         Agreement must have been entered into freely without fraud, duress, coercion, or overreaching
·         There must have been full disclosure or full knowledge of the nature, value and extent of the prospective spouses property
·         The terms must not promote or encourage divorce or profiteering by divorce
o    Overreaching
·         Court will not uphold a prenup that involves one party outwitting or cheat the other by cunning or exploitation
o    Other Thoughts
·         Should try and include a choice of law provision for more accuracy, certainty, and planning purposes
·         Dead Man’s Statute
o    Prohibits a person making a claim against the estate of a deceased person from testifying as to oral communications from or transactions with the deceased
o    Sometimes prevents testimony that would aid in construing a prenup
·         Statute of Frauds
o    Promises made in contemplation of marriage, other than promises to marry, must be in writing and signed by the party to be charged
·         Pension Benefits
o    ERISA governs the benefits to surviving spouse and a waiver of rights to a pension must comply with ERISA
o    Cannot just be in general language 
·         Uniform Premarital Agreement Act (29)
o    A premartial agreement is not enforceable if the party against whom enforcement is sought proves that:
·         That party did not execute the agreement voluntarily; or
·         The agreement was unconscionable when it was executed and, before the execution of that agreement, that party:
§ Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
§ 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
§ Did not have, or reasonable could not have had, an adequate knowledge of the property or financial obligations of the other party
·         If the agreement makes on party eligible for public assistance after dissolution, then a court may require the other party to support
·         Issue of unconscionability shall be decided by the court as a matter of law
·         ALI Principles
o    Suggest a rebuttable presumption of validity if it is shown that the agreement was executed at least 30 days prior to the marriage, that both parties had a reasonable opportunity to obtain counsel, and if they weren’t represented, the agreement is easy to understand
·         Postnuptial Agreements
o    Test for enforceability is similar to prenups
o    However, in some states, they are unenforceable
o    ALI Principles
·         Allow postnups but give either party the right to rescind within 30 days
·         Change of Circumstances
o    Sometimes prenups may be unenforceable based on circumstances at the time of divorce
·         Concerned about leaving spouse with enough property
·         Child Support and Custody
o    UPAA: provides that the right to child to support may not be adversely affected by a prenup
·         Bankruptcy Discharge
o    Courts are divided on whether obligations under prenups are dischargeable in bankruptcy
o    Courts have helded individuals are equitably estopped from discharging such debts
·         Engagements
o    No longer breach for suit of broken engagement (Heart Balm Statutes)
o    Ownership of Gifts
·         Gifts made in contemplation of marriage are understood to be conditional
·         For engagement rings, a donor who breaks it off without justification is not permitted to recover a gift, though some allow the return regardless of fault
·         Fletcher v. Fletcher(12)
o    The night before their marriage, H presented a prenup to W and asked her to sign it. Uncontested evidence showed that H’s attorney told W she could have legal counsel and she declined. In addition, attorney orally explained the agreement but did not fully tell W what her rights were and how the agreement would affect her rights.
·         W claims she did not even read the agreement before signing it and that she was misled by H and the attorney. As a result, she states that the agreement is unenforceable because it was obtained by fraud and duress
o    Court holds that when an antenuptial agreement provides disproportionately less than the party would have received otherwise, the party financially disadvantaged must have a meaningful opportunity to consult with counsel.
·         The presentation of an agreement a very short time before the wedding raises a presumption of overreaching or coercion
§ Postponing the wedding would be a big deal
·         Here, there was adequate disclosure, W knew her rig

e remedies inconsistent with legislative intent if a state has abolished common law marriage
·         Evidenced an intent to disfavor these informal arrangements
o    Statutory Approaches
·         Many states have statutes that provides contracts between unmarried cohabitors are valid only if signed and in writing
·         Sometimes in States’ statutes of fraud
o    ALI Principles
·         § 6.03: domestic partners are two persons of the same or opposite sex who, for significant periods of time, share a primary residence and life together as a couple
·         Proposed property and support rights of domestic partners are the same as those of married couples
·         Marvin v. Marvin(40)
o    P and D entered into an oral agreement that they would live together and hold themselves out to the public as H & W. P then gave up her career to become a homemaker. They lived together for 6 years. However, D then forced P to leave the house and refused to further support her.
·         P alleges that she has contractual rights to support from D and wants the court to impose a constructive trust on 1/2 of the property acquired during their relationship
§ In addition, although not pled, the Family Law Act of 1970 supports finding that she should be entitled to property because they had an actual family relationship
·         D moves to dismiss the action
§ First, contrary to public policy because it was related to the “immoral” character of P & D’s relationship
§ Second, it violated public policy because it adversely affected the community property rights of P’s lawful wife, B
§ Third, the oral agreement is barred because all contracts for marriage settlements must be in writing
o    Court holds that the Family Law Act does not govern distribution of property acquired during a nonmarital relationship (though a judge can find that in his or her discretion)
·         In addition, courts should enforce express contracts so long as they are not founded solely on a sexual relationship