Marital Contracts and Marriage Class #1

Marital and Cohabitation Agreements Private ordering of public/private relationships

Marital Agreements Premarital/Prenuptial/Antenuptial Postnuptial Separation

Marital agreements in contemplation of: Death (historical) Divorce (last few decades)

Subject matter for marital agreements Property division Alimony Inheritance rights Rights are responsibilities during marriage

Generally off limits Child custody and visitation (parental responsibility) Child support

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

Other remedies Action for fraud Constructive trust Quantum meruit (quasi-contract)

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

Marriage The new frontier in civil rights?

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.

Annulment of marriage Void marriage Voidable marriage

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