MARRIAGE AND DIVORCE AGREEMENTS
Premarital Agreements – executed in contemplation of
marriage
1.
Validity of Agreement
-recognized in when signed
-freedom to contract
-permitting parties to arrange their
financial affairs as they deem fit
- agreement could so unreasonably
encourage divorce as to be against
public policy
2.
Judicial Review of Agreement
-generally approved
- parties are free to reject an
unsatisfactory agreement
3.
Fraud and Coercion
-not enforceable if tainted by fraud
and coercion
-party alleging fraud and coercion
must prove it
- parties are considered to be
dealing at an arms’ length
- were parties informed
- was signature voluntary
4.
Disclosure of Assets
-full and fair disclosure
-informed decision
-written statement
-significant assets with
approximate value
- approximate annual
income
-significant future
acquisitions or changes in income
- disclosure need not be
exact
5.
Waiver
-meaningful choice
- representation by counsel
-adequacy of time to review
agreement
-party’s understanding of rights
6.
Fair and Reasonable Terms
-fair and reasonable when signed and
when enforced
Postmarital Agreements- signed during marriage
1.
Validity of Agreement
- recognized in now
2. Judicial Review
- carefully scrutinized
-choices are different when spouse
attempting to save a marriage
-situation full of opportunity for
one spouse to sue threat of dissolution to bargain themselves into a position of
advantage
-
parties not at an arms length
-knowing
and explicit agreement to waive the right to equitable division
3. Fraud and coercion
-burden
shifting analysis
-intensity
of negotiations
4. Disclosure of Assets
-
duty of absolute fidelity
-confidential
relationship
-fiduciaries
without the safeguard of divorce obligations and court-ordered disclosure
5. Waiver
-knowing
and voluntary relinquishment
6. Fair and Reasonable Terms
-
context of agreement
-purpose
of agreement
-disparity
of income and assets
-may
not be equal bargaining power
-
consideration of divorce factors
Separation/Divorce Agreement- signed in anticipation of
divorce judgment
1.
Validity of Agreement
-recognized since 1976
2.
Judicial Review
-parties have full protection of
divorce laws
- Court will review every term
-considered in light of your Judge’s
experiences
3.
Fraud and
coercion
4.
Disclosure of Assets
-required by statute
- more than approximate values
5.
Waiver
6.
Fair and Reasonable Terms
-influenced by views of your Judge
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ReplyDeletePersonal Injury Lawyer Phoenix
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