Marital Contracts and Marriage Class #1
Dec 23, 2015
Subject matter for marital agreements
Property division Alimony Inheritance rights Rights are responsibilities during marriage
Requirements for valid premarital (antenuptial) agreements
Voluntary Not unconscionable when executed Full and fair disclosure of assets and
liabilities Opportunity to consult independent counsel
Florida requirements
Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla. 1962)*– fair and reasonable, or– full and frank disclosure, or– general and approximate knowledge of other
party’s property– competent and independent advice.
*replaced by statute as to rights upon death, but still cited in divorce setting
Challenges to prenuptial agreements
Posner v. Posner, 257 So.2d 530 (Fla. 1972)– inadequate and disproportionate provision for the
a spouse will not vitiate an antenuptial agreement.– freedom to contract includes freedom to make a
bad bargain.– but freedom to contract is not absolute. The
public interest requires that antenuptial agreements be executed under conditions of candor and fairness. . . .
Fairness not required
Belcher v. Belcher, 307 So.2d 918 (Fla. 3d DCA 1975)– it is the law of this state that a prospective spouse
has a right to freely choose to enter into an antenuptial agreement which may be improvident as to him or her, and the agreement will be upheld if there has been a full disclosure
Public interest in fairness?
Limitations on alimony (aka spousal support) that renders spouse dependent on public assistance may be declared void as against public policy
Postnuptial agreements
Entered into by already married couple Validity requirements similar to prenuptial
agreements Not valid everywhere
– Court’s concerned about lack of arms-length relationship, disclosure issues, etc.
Purpose of postnuptial agreements is to plan for:
Death Divorce Private ordering of marriage relationship
Separation agreements
Special type of postnuptial agreement Provides for property and alimony
arrangement upon separation Often enforceable in subsequent divorce
case (if general requirements are satisfied)
Reconciliation agreements
Another special type of postnuptial agreement
Entered into by couple already separated Sets conditions for reconciliation and
provides for what will happen if reconciliation fails– Division of property– Alimony– Other issues related to divorce
Cohabitation agreements
Attempt to assign marriage-like duties and responsibilities to non-marital relationships
May be used by those who are legally unable to marry– Same-sex couples– Couples where one or both parties remain
married to another person
Validity of cohabitation agreements
Must be express agreements, will not be implied from the factual circumstances
Oral agreements hard to prove, harder to enforce
Written agreements may be enforced in some states– If not banned by “meretricious” rules
Practice issues – Drafting attorney
High malpractice risk Focus on disclosure
– Be as complete as possible
Never represent both parties– Limit contact with non-client party– Insist that other party seek independent counsel,
independent meaning someone you or your client did not select
Practice issues – Reviewing attorney
Never recommend that your client sign the agreement– Purpose of agreement is to surrender rights that
otherwise exist
Put your “don’t sign” recommendation in writing and have your client sign an acknowledge that he/she received it and understands it
Advice for both attorneys
Charge enough for this service to make the malpractice risk worthwhile
Don’t handle the subsequent divorce– You are likely to be called as a witness on the
validity of the agreement
What is marriage?
Contract Status Both?
Best thought of as a legal status conferred by the state that has many characteristics of a civil contract.
Rights (fundamental?) associated with marriage
Privacy– Procreation– Sexual relations
Exercise of religious beliefs Emotional fulfillment Financial benefits
Link between marriage and these rights disappearing?
Domestic partner benefits from public and private employers
Domestic partner and civil union statutes in Vermont (and now California as of 1/1/05)
Access to contraception and sexual privacy for non-married couples (Eisenstadt v Baird), but note backward step (Bowers v Hardwick)
Limitations on right to marry
Existing spouse (prior marriage not terminated)
Race Age Gender/sexual orientation Relationship to spouse (by blood or
marriage, aka consanguinity or affinity) – Special note on “first cousin” marriages
One spouse (at a time)
Are people monogamous, or is it more accurate to say that we practice “serial monogamy”?
Formal and informal marriages
Formal marriage typically requires– Licensure– Solemnization
Informal marriage (common law)– Present mutual intent to enter into the legal
relationship of marriage– Some states require a period of “holding out” as
husband and wife.
Putative marriage
Technically void or voidable due to a defect, often invalid license
Designed to protect parties and honor their good faith expectancy interest that they are, in fact, married despite the defect
Proxy marriage
This is a type of formal marriage, but with a “stand-in” or proxy for one of the parties
Recently more common due to Iraq war Not recognized everywhere Note: Proxy consummations disfavored!
Florida marriage – ceremonial (formal) only
Prior to January 1, 1968, both ceremonial and common law marriages were recognized in Florida
Any common law marriage entered into after that date is invalid
If entered into before January 1, 1968, a common law marriage is valid if the parties were capable of contracting, a present agreement or consent to be husband and wife existed, and the marriage was consummated.
Florida marriage requirements
Must be 18 years old– Parental waiver– Judicial waiver– Prior marriage waiver
Can’t be same sex Can’t marry one’s brother, sister, aunt, uncle,
nephew, or niece Can’t be prison inmate unless inmate can prove the
marriage will not pose a threat to the inmate's security or the security and order of the institution nor to public safety
Premarital preparation course
Reduces marriage license fee by half Permits issues of license that is immediately
effective (if no course, then there is three day waiting period).
Same Sex Marriage
Massachusetts: Goodridge v Dept of Health*– Redefining marriage and family, or has society
already done that for us?– In economic terms, is the law a “lagging indicator”
on issues relating to families and marriage?– New right, or belated recognition of existing right?
*See Web site for full text of opinion
Civil Unions and Domestic Partnerships
Vermont’s civil union statute– Parties to a civil union shall have all the same benefits, protections
and responsibilities under law, whether they derive from statute, administrative or court rule, policy, common law or any other source of civil law, as are granted to spouses in a marriage.
– A party to a civil union shall be included in any definition or use of the terms "spouse,“ "family," "immediate family," "dependent," "next of kin," and other terms that denote the spousal relationship, as those terms are used throughout the law.
– Parties to a civil union shall be responsible for the support of one another to the same degree and in the same manner as prescribed under law for married persons.
– The law of domestic relations, including annulment, separation and divorce, child custody and support, and property division and maintenance shall apply to parties to a civil union.
Void marriage
Defect that goes to the core of the marriage requirements – Lack of consent– Non-age– Another spouse– Relationship by consanguinity or affinity
Marriage is void ab initio, in theory no judicial action is required
Voidable marriage
Requires affirmative judicial action to determine validity or non-validity of marriage– Grounds are often fraud, deceit, non-disclosure,
infertility (decreasing in importance as a ground for annulment)
– Must go to the “essence of the marriage” Routine lies about income, social status, etc., will not be
sufficient Must relate to the present situation, not future events