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Family Law
University of Minnesota Law School
Younger, Judith T.

Antenuptial Agreements
aka prenuptial or premarital agreements
usually made in contemplation of marriage
a form of K that alters the marital property regime (is marital property the same thing as community property???)
marital regime is prescribed by the state
a form of agreement that usually deal with support and property matters
usually a long period between execution and enforcement
the agreement is different from ordinary contract
in addition to those rules that govern an ordinary contract, the agreement is also governed by judicial decisions and statutes
jurisdictions look to the parties relationship, ex. because of the confidential relationship courts expect full disclosure from the partners.
jurisdictions look at the fact that the parties are trying to change what is prescribed by the states under the marital regime.
jurisdictions examine this type of agreement at the time it is made as well as at the time it is enforced, ex. are there changed circumstances that would make enforcing the agreement unconscionable.
most jurisdictions require the agreement to be in writing.
events that triggers the litigation is dissolution either by death or divorce.
usually one party is seeking to enforce the agreement and the other party is arguing unenforceability.
courts use the following standards to determine if the agreement is enforceable:
procedurally fair at time of execution?
disclosure of assets
representation
duress
substantively fair at time of execution?
o      substantively fair at time of enforcement?
change of circumstance that would make enforcement unconscionable.
element of surprise, ex. children
ask what did the parties want when they entered into agreement?
did they want to protect their children from previous marriages?
did they enter it thinking the marriage would be short term?
Dawley (agreement enforceable) – wife argued the agreement was in contemplation of short term marriage but their marriage became a long term marriage and thus the agreement is not enforceable. Agreement does not mention anything about the duration of marriage. Crt did not find her argument persuasive. (Self Note: maybe she should have argued substantively unfair at enforcement?)
 Roth – agreement that speaks only of death and is silent on divorce. Crt found that the agreement should only apply to death.
 Benker (agreement not enforceable)– children rather than the couples who are litigating the validity of the agreement.   Both couples waived their rights to each other’s estates in the agreement. The agreement was held to be invalid because procedurally not fair at time of execution, husband did not fully disclose his estate and there was problem with attorney representation, ie widow did not have counsel. (Note: to ensure that disclosure will not be a problem you should attach copies of the assets) (Note: Std of disclosure in MN is fair disclosure and full disclosure. Jurisdictions vary on full or fair disclosure) (Person challenging the agreement has the burden of proof on disclosure). The crt court characterizes their relationship as a confidential relationship that requires extra duty of care. (In Barry Bond case the crt refused to characterize premarriage to be confidential, it is arms length).
Vermont case – rare case b/c court upheld an oral agreement. 
Osborne (agreement enforceable)– court found agreement valid. crt found his arguments unpersuasive. he argued duress (Note: some jurisdictions require agreement to be presented a certain number of days before marriage) and that antenuptial agreement cannot control property acquired after marriage.   crt found disclosure was valid b/c schedule of assets were attached, although not articulated he is a man. 
Moldofsky (agreement enforceable)– statute does not require disclosure for a valid antenuptial agreement. She admits that he does not have to disclose to her but because his disclosed fraudulently his fraudulent disclosure caused her to enter into the agreement. The crt said too bad. (Note: Distinction between postnup and antenup. If K is executed after marriage, ie postnuptial, to be valid there must have been financial disclosure. If K is executed antenuptially no disclosure is necessary. Maybe the distinction is that some courts don’t consider you are in confidential relationship until after you are married)
Trapini – obsolve party from disclosure by characterizing it as prenup even though executed after marriage.
Avitzur  – the civil courts can enforce a religious agreement.
Uniform Premarital Agreement Act (see pg. 545) – leg. std. for determining validity of antenup agreements.   Some states which have adopted the UPAA have added amendments. 
agreements be executed fairly and understandingly and be free from fraud, imposition, deception, or over-reaching.
Settlement need not be equal it only needs to be equitable.
See Client #1
See MN Statute §519.11 (antenup and postnup contracts)
 
 
Postnuptial Agreements
most common form is separation agreement or marital termination agreement
made in anticipation of breaking up
having lawyers carve out what they want
parties trying to settle matters by K rather than leaving it to the marital property regime.
usually not a long period between execution and enforcement.
any agreement before or after marriage that encourages divorce is invalid as void against public policy thus separation agreements was once looked upon negatively by the courts. Now separation agreements gained popularity with the coming of no-fault divorce.
contract v. judicial decree
contract
allows parties to settle their own affairs
subject to ordinary contract rules and the special rules of fairness (ie procedurally and substantive fairness)???
can be modifiable???
remedy is limited to K rules
o      Judicial Decree
required for divorce
remedy for enforcement of judicial decree is contempt.
modifiable on issues of: 1. custody (modifiable std. is best interest for the child) and 2. alimony or maintenance (std. is change in circums

ery still available for beach of promise to marry. (Note: damages for loss of expected financial and social position is no longer recoverable under breach of promise to marry action. Thus, the evidence of D’s wealth and social position becomes immaterial in assessing P’s damages). 
b.   defenses to an action for breach of promise to marry include: fraudulent misrepresentation or concealment, insanity, at time of the agreement, development of serous illness or physical conditions, or the P was married at the time of the engagement.
2.   seduction
a.   cl tort
b.   exists in some jurisdictions
c.   usually accompanies promise to marry
d.   action is available for father and mother for their unmarried daughter. (Note: possible gender discrimination violation)
3.   alienation of affection
a.   action that occurs after marriage
b.   action by husband against third party, ex wife’s parents
4.   criminal conversation
a.   H suing W’s lover
o      many jurisdictions have banned heart balm actions
o      NY Civil Rights Law makes it a felony for lawyers who bring these actions
§ Tuck – an attempt to get around heart balm action.   Cause of action was sustained. P married D based on D’s fraudulent misrepresentation that he was unmarried. 
 
 
Compare Hewitt and Stanard
·          Remember the Hewitt case-should Mrs. Hewitt have sued for breach of promise to marry instead of divorce b/c Ill still allows breach of promise action, promise to share future earnings, etc.
·          Stanard v. Bolin-he made representation that he is worth more than 2million, promise to retire after two years and travel, promise he will never work, etc.
·          Both cases there were promises made but in Hewitt she recovered nothing whereas in Standard she was able to recover something.
 
 
Gifts in Contemplation of Marriage
Vigil – ring is a conditional gift dependant upon the parties marriage, the question of fault is irrelevant, and therefore the ring should be returned.
California Civil Code §1590 -Gifts in contemplation of marriage (see pg. 136)
crt has discretion
 New York Civil Rights Law §80-b
 
Questions to contemplate
Should the party who is at fault have to return the ring?
What if the ring is an installment?
 
 
Curative Devices
1.     putative marriage
unmarried person may acquire the rights of a legal spouse only if he goes through a marriage ceremony an cohabits with another in good