Marital Agreements (Portfolio 849)

Tax Management Portfolio, Marital Agreements, No. 849-2nd, describes and analyzes three types of agreements: premarital agreements, postmarital agreements, and domestic partnership agreements.

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Tax Management Portfolio, Marital Agreements, No. 849-2nd, describes and analyzes three types of agreements: premarital agreements, postmarital agreements, and domestic partnership agreements. A premarital agreement is a contract between prospective spouses, including same-sex couples, made in contemplation of marriage. A postmarital agreement is a contract executed by parties to an ongoing marriage and not incident to a divorce or marital separation. A domestic partnership agreement, sometimes known as a cohabitation agreement, is a contract executed by a couple whose domestic arrangements may not be state-sanctioned. However, the term also includes such an agreement executed incident to a civil union or registered domestic partnership. Generally, all of these agreements are used to define the property and support rights of the parties upon termination of the marriage or other relationship by death or dissolution. Some parties also opt to include financial obligations during the marriage or other relationship. This Portfolio does not cover separation agreements that settle property rights, spousal and child support obligations, and child custody matters incident to a separation or divorce.
This Portfolio focuses on the requirements for creating and drafting valid marital and domestic partnership agreements, including the permissible scope of such agreements, subjects on which the parties' contractual rights may be limited, and the role of counsel. Various drafting issues discussed include provisions governing the parties' rights at death and divorce, spousal support, waivers, financial support of children, attorneys' fees and costs, and nonfinancial matters. The portfolio also examines how the parties' conduct after the execution of an agreement may affect their rights under the agreement. The Uniform Premarital Agreement Act of 1983, which many states have enacted, is covered in detail.
The Worksheets include a number of sample forms illustrating the concepts and provisions discussed in the Portfolio, as well as summaries of state law governing marital and domestic partnership agreements.
This Portfolio may be cited as Ravdin, 849-2nd T.M., Marital Agreements.

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Linda J. Ravdin, B.A., Ohio State University (with honors 1970); J.D., George Washington University (with honors 1974); shareholder, Pasternak & Fidis, Bethesda, Maryland; admitted to practice, Virginia, District of Columbia and Maryland; member of family law sections, American Bar Association, District of Columbia Bar, Virginia State Bar, and Maryland State Bar Association; fellow, American Academy of Matrimonial Lawyers; author, Premarital Agreements: Drafting and Negotiation (American Bar Association 2011); co-author, Domestic Relations Manual for the District of Columbia (2002); ABA Advisor to Drafting Committee on Premarital and Marital Agreements, Uniform Law Commission (formerly known as National Conference of Commissioners on Uniform State Laws).


Detailed Analysis

I. Introduction

A. Scope of this Portfolio

B. Definitions and Terminology

C. Role of Counsel

D. Historical Development of Premarital Agreements

1. Premarital Agreements at Death

2. Premarital Agreements at Divorce

3. Modern View of Premarital Agreements at Divorce


F. Requisites of a Valid Premarital Agreement

G. Postmarital Agreements

H. Domestic Partnership Agreements

I. Scope of Premarital, Postmarital and Domestic Partnership Agreements

J. Subjects on Which Parties’ Rights to Contract Are Limited

K. Client Intake: Gathering the Facts and Determining Parties’ Objectives

L. Drafting Considerations

II. Criteria for an Enforceable Premarital Agreement

A. Scope of this Chapter

B. Essential Contractual Elements

C. Formalities

D. Legal Capacity

E. Approaches to Determining Validity: Introduction

F. Public Policy Considerations

G. Fiduciary or Confidential Relationship

H. Requirements for Validity: Procedural Fairness States

1. UPAA States

2. UPAA Plus

3. Non-UPAA States Following the UPAA Model

4. Either Procedural Fairness or Substantive Fairness

5. Pure Procedural Fairness

6. Independent Advice as a Prerequisite to Validity

I. Requirements for Validity: Substantive Fairness States

J. Where Is the Law of Premarital Agreements Going?

K. Conclusion

III. Postmarital Agreements and Postmarital Amendments to Premarital Agreements

A. Scope of this Chapter

B. Definitions and Terminology

C. Uses of Postmarital Agreements

D. Postmarital Amendments to Premarital Agreements

1. Postmarital Amendments Under the UPAA

2. Postmarital Amendments in Non-UPAA States

3. Cancellation of Premarital Agreement

E. General Validity of Postmarital Agreements

1. Authority for Postmarital Agreements Generally

2. Authority for Comprehensive Postmarital Agreements

3. Applicability of the UPAA to Postmarital Agreements

4. Authority for Postmarital Agreements Regarding Property Rights

F. Criteria for Validity of Postmarital Agreements and Postmarital Amendments to Premarital Agreements

1. Generally

2. Same Validity Criteria as Premarital Agreements

3. Fiduciary or Confidential Relationship

4. Consideration or Fairness

5. Independent Advice as a Prerequisite to Validity

6. Court Approval

G. Conclusion

IV. Establishing the Elements of a Valid Agreement

A. Scope of this Chapter

B. Burden of Proof of Enforceable Agreement

1. Generally

2. Proof of Existence and Terms of Agreement

3. Allocation of Burden of Proof

C. Voluntariness

1. Factors in Determining Voluntariness

2. No Single Factor Determinative

D. Legal Capacity

E. Independent Counsel

1. Actual Advice of Independent Counsel

2. Advice to Obtain Independent Counsel

3. Opportunity to Obtain Independent Advice

4. When Presence of or Advice to Obtain Counsel Will Not Save an Agreement from a Finding of Invalidity

F. Opportunity to Negotiate Terms

G. Duress and Undue Influence

1. Timing of Presentation of Premarital Agreement

2. Threat Not to Marry

3. Pregnancy

4. Threat to Divorce or Take Custody of Children

5. Threat to Deny Religious Divorce

6. Emotional Distress

7. Passion

H. Knowledge of Marital Rights

1. Adequate Opportunity to Read and Understand

2. When One Party Has a Language Barrier

3. Prior Experience and Education

4. Presence of Counsel for Weaker Party

5. Explanation of Rights by Counsel for Proponent

6. Express Explanation of Rights and Acknowledgment in Agreement or in Separate Writing

I. Unequal Bargaining Power

J. Financial Disclosure

1. Disclosure Generally

2. Methods of Financial Disclosure

3. Content of Financial Disclosure

4. Waiver of Disclosure

5. Addressing Privacy Concerns in the Disclosure of Financial Data

K. Unconscionability and Unfairness

1. The UPAA

2. Unconscionability or Unfairness at Execution

3. Unfairness or Unconscionability at Enforcement

4. Adequacy of Consideration for Postmarital Agreement

5. Too Generous - Too Bad

V. Domestic Partnership Agreements

A. Scope of this Chapter

B. Terminology

C. Scope of Domestic Partnership Agreements

D. General Validity of Express, Written Domestic Partnership Agreements

E. Rights of Domestic Partners Upon Death or Dissolution in the Absence of an Express, Written Contract

1. No Rights Arising Solely from Status

2. Contractual and Quasi-Contractual Property Rights

3. Trends in the Recognition of Domestic Partnership Status with Accompanying Rights

F. Domestic Partners Need Express Written Agreements

G. Criteria for Enforceability of Express, Written Domestic Partnership Agreements

1. Consideration

2. Financial Disclosure

3. Fairness and Conscionability

4. Confidential or Fiduciary Relationship as Affecting Validity

5. Signed Writing

6. Public Policy Limitations on Parties’ Right to Contract

H. Enforceability of Contracts Relating to Qualified or Statutory Retirement Plans

I. Enforceability of Agreements Providing for Partner Rights Upon Death

J. Enforceability of Provisions for Support After the Termination of the Relationship

K. Conclusion

VI. The Role of Counsel

A. Scope of this Chapter

B. Relationship Between Attorney Misconduct and Validity of Agreement

C. Role of Counsel for the Economically Stronger Party

1. Persuade the Other Party to Retain Independent Counsel

2. Assistance to Unrepresented Party in Selection of Counsel

3. Financial Assistance to Weaker Party to Retain Counsel

4. Provide an Opportunity to Negotiate Changes

5. Create and Maintain a Record for Future Litigation

6. Maintain a Signed Copy or Original

7. Advise the Client of the Risks of Driving Too Hard a Bargain

D. Dealing with a Client Whose Capacity to Contract May Be Diminished

E. Role of Counsel for the Proponent in Dealing with an Unrepresented Party

1. Advice to Get Independent Counsel

2. Meeting with Unrepresented Party

3. Dealing with an Unrepresented Party with Whom the Lawyer Has a Prior Relationship

F. Counsel for the Economically Weaker Client

G. Joint Representation

1. Directly Adverse Joint Representation

2. Joint Representation of Husband and Wife for Postmarital Agreement

3. Joint Representation: Attorney as Mere Scrivener

4. Avoiding Unintentional Joint Representation

VII. Drafting Provisions for Disposition of Property at Death

A. Scope of this Chapter

B. Terminology

C. Drafting Death Provisions

D. Spousal Property Rights at Death in the Absence of Agreement

1. Common Law Title States

2. Community Property States

3. Spousal Survivor Rights and Death Benefits Under Private Sector Employee Pension Plans

4. Spousal Rights to Life Insurance Under ERISA

5. Spousal Survivor Rights and Death Benefits Under Federal Statutory Plans

E. Provisions for Disposition of Property at Death

F. Provisions for Waiver of Spousal Rights at Death

1. Statutory Waivers

2. Distinguishing Waivers of Rights at Death and Divorce

3. Need for Specific Waivers

4. Waivers of Rights Under Pre-Existing Beneficiary Designations

5. Need for General, Comprehensive Waivers

6. Waivers of Survivor and Lump Sum Death Benefits Under Qualified Retirement Plans

7. Waivers of Rights Under Federal Statutory Retirement Plans

8. Planning Considerations in Survivor Annuity Waivers

9. Waivers of Rights Resulting from Changes in Law After Execution

G. Provisions for Creation of Spousal or Partner Rights at Death

1. Creation of Contractual Community Property Regime

2. Identifying Separate Property

3. Creation of Specified Rights for the Surviving Spouse

4. Creation of Rights to Life Insurance

5. Creation of Survivor Rights Under Private Sector Retirement Plans

6. Creation of Survivor Rights under Federal Statutory Retirement Plans

7. Life Estate in Marital Home

8. Use of Trusts to Provide for Surviving Spouse

9. Defining the Pool of Assets Subject to Spousal Rights at Death

10. Probate Estate or Residuary Estate

11. Augmented Estate

12. Defining the Spouse's Percentage

H. Disposition of Debts

I. Termination of Spousal Rights Under Death Provisions of Agreement

J. Postmarital Estate Planning Issues

1. Need for Postmarital Estate Planning

2. Spousal Rights Under Premarital Will

3. Treatment of Post-Execution Transfers or Will Provisions

VIII. Drafting Provisions for Disposition of Property at Divorce or Dissolution of a Domestic Partnership

A. Scope of this Chapter

B. Spousal Property Rights at Divorce in the Absence of Agreement

1. Property Distribution Systems

2. Disposition Models

3. Unitary Versus Mixed, or Hybrid, Property

C. Provisions for Disposition of Property at Divorce

1. All Property Rights are Determined by Title

2. All Property is Marital or Community Property

3. Contractual Community Property Regime

D. Issues in Drafting Property Sharing Provisions

1. Defining the Shared Estate

2. The Meaning of “Acquired” as it Relates to Treatment of Property at Divorce

3. Monetary Contributions to General Household Expenses

4. Contributions to Acquisition or Appreciation of Separate Property

5. Nonmonetary Contributions to the Household or Family

6. Post-Execution Conduct as Affecting Parties’ Property Rights

E. Treatment of Property Acquired During Period of Cohabitation

F. Identifying Separate Property

1. Using Disclosure Schedules and Asset Records to Establish

2. Maintaining Records During Marriage

G. Treatment of Untitled Tangible Personal Property

1. Ordinary Furniture and Household Effects

2. Family Use Personal Property

3. Antiques, Jewelry, Artwork and Collectibles

H. Provisions for One Party to Have Exclusive Use of Real Estate Upon Separation

I. Treatment of Retirement Benefits in Premarital and Postmarital Agreements

1. Waivers of Rights

2. Provisions for Sharing Retirement Benefits at Divorce

J. Drafting Property Waivers

1. Distinguishing Waivers of Rights at Death and Divorce

2. Distinguishing Waivers of Claims to Separate Property and Waivers of Claims to Marital (Community) Property

3. Waivers of Claims Arising out of Postmarital Conduct

4. General Waivers Versus Express Waivers

5. General Waivers - Community Property States

6. Waivers of Rights Resulting from Changes in Law After Execution

7. Newly Recognized Property Rights

K. Provisions for Execution of Agreement in the Event of Divorce

1. Valuation

2. Mechanics of Disposition of Property

3. Dispute Resolution

L. Enforcement Issues

IX. Spousal Support Provisions

A. Definitions and Scope of this Chapter

B. Spousal Support in the Absence of Agreement

1. Forms of Spousal Support for a Former Spouse

2. Support for an Existing Spouse

C. Enforceability of Premarital Agreement Provisions Fixing or Waiving Post-Divorce Spousal Support

1. Generally

2. No Waiver Permitted

3. Provisions Fixing or Waiving Post-Divorce Spousal Support Modifiable Only Under Extreme Circumstances

4. Enforceability of Premarital Support Waivers Undetermined

D. Postmarital Agreements Regarding Spousal Support

E. Criteria for Determining Amount of Award of Post-Divorce Spousal Support

1. UPAA Standard

2. Amount Necessary to Satisfy Unconscionability Standard

3. Same Criteria as in the Absence of Agreement

F. Enforceability of Provisions Fixing Support When It is the Support Payor Who Seeks Relief from the Terms of Agreement

G. Enforceability of Provisions Fixing or Waiving Support During Ongoing Marriage

1. Generally

2. Enforceability of Support Waiver in Suit for Separate Maintenance or During Pendency of Divorce Proceeding

3. Waiver of Temporary Support or Separate Maintenance in Postmarital Agreement

4. Premarital Support Waiver as Affecting Spousal Liability to Third Parties: The Necessaries Doctrine

5. The Necessaries Doctrine and Pre- and Postmarital Support Waivers

H. Drafting Spousal Support Provisions

1. Provisions for Treatment of Property Acquired During Marriage

2. Provisions for Employment During Marriage

3. Drafting Waivers

X. Financial Provisions for Children

A. Scope of this Chapter

B. Limits on Courts’ Authority Regarding Financial Provisions for Children in the Absence of Contract

C. Enforceability of Contractual Provisions for Children Generally

D. Subjects for Financial Agreements Regarding Children

E. Agreement Provisions for the Benefit of Minor Children that Exceed a Parent's Legal Support Obligation

F. Post-Majority Basic Support Payments

G. Payment of College Expenses

1. Definition of College Expenses

2. Allocation Between Parties

3. Definition of Income

4. Exchange of Financial Records

5. Financial Limits on Parties’ Obligation

6. Selection of School

7. Time Limits on Completion

8. Other Limitations on the Child

9. Application of Funds from Other Sources

10. Parties’ Obligations to Fund Savings for Future College Expenses

11. Child's Obligation

12. Continuation of Periodic Child Support Payments to Custodial Parent

13. Obligations for College Expenses After Death of Obligor

H. Support for Stepchildren

I. Estate Planning Obligations or Other Provisions for a Child After Parent's Death

J. Modification of Contractual Obligations

K. Enforcement Issues

L. Conclusion

XI. Attorneys Fees and Costs

A. Scope of this Chapter

B. Fee Shifting in the Absence of Agreement

C. Enforceability of Waiver of Fees to Challenge Validity of Premarital Agreement After Marital Separation

D. Enforceability of Fee-Shifting in Postmarital Agreements

E. Fees for Litigation of Nonwaivable Substantive Claims

F. Waiver of Pendente Lite Attorney's Fees

G. Loser Pays Provisions

H. Drafting Attorney's Fees Provisions

1. Need for Express, Comprehensive Waivers

2. Need for Express Fee-Shifting Provisions

XII. Nonfinancial Provisions and Provisions Regulating the Ongoing Marriage

A. Scope of this Chapter

B. Child-Rearing During Marriage and After Divorce

1. Custody of Children After Divorce

2. Religious Upbringing of Children

C. Other Provisions Regarding Religious Issues

D. Grounds of Divorce

1. Marital Misconduct and Fault Divorce

2. Waiver of Fault Grounds of Divorce

E. Exclusive Use of Marital Home Upon Separation

F. Provisions Regarding the Spouses’ Relationship with Each Other and with Family Members

G. Performance of Domestic Services as Consideration for Promise to Transfer Property

H. Living Expenses and Money Management During Marriage

I. Right to Control Property During Marriage

XIII. The Effect of Post-Execution Conduct on Parties’ Rights

A. Scope of this Chapter

B. Rescission and Abandonment

1. Termination of Engagement Followed by Reconciliation

2. Separation or Divorce Followed by Reconciliation

3. Conduct Inconsistent with Continued Viability of Agreement

4. Request for Relief Inconsistent with Agreement

5. Parties Become Business Partners

6. Complete Merger of Parties’ Separate Estates

7. Provision of More Generous Benefits Under Will or Inter Vivos Transfer

8. Substantial Breach of Agreement

9. Oral Revocation Coupled with Conduct

10. Disadvantageous Change of Position

C. Ratification and Estoppel

D. Commingling, Retitling, and Interspousal Gifts

1. Commingling

2. Effect of Titling Property Jointly on Parties’ Rights at Divorce

3. Effect of Joint Title with Right of Survivorship at Death

4. Use of Funds from Joint Bank Accounts

5. Failure to Keep Adequate Financial Records

6. Commingling to the Detriment of One Party Where Other Party Controls Finances

7. Provisions for Surviving Spouse at Variance with Provisions Required by Agreement

E. Sales or Transfers

F. Waste and Dissipation, Consumption of Assets, and Transfers to Third Parties

1. Gifts to and Support for Children, Former Spouses, and Other Family Members

2. Remarriage

3. Post-Death Transfers in Derogation of Contractual Obligations

4. Financial Mismanagement, Bad Investments, Frivolous Expenditures and Other Misconduct

5. Living Expenses and Other Personal Expenses

6. Refusal to Work and Other Lost Opportunities

7. Squandering and Misuse of Separate Property

XIV. Other Drafting Issues

A. Scope of this Chapter

B. Recitals

1. Use of Recitals to Express Parties’ Intent

2. Intended Date of Marriage

3. Statement Regarding Consideration

C. Words of Intent Versus Words of Promise

D. Creation of Third Party Rights Under Agreement

E. Application of Agreement to Death, Dissolution or Both

F. Termination Point for Accrual of Rights Under Contract

G. Dispositive Provisions

H. Agreement Provisions Regarding Transfers and Gifts

I. Treatment of Disclosures

J. Acknowledgment of Knowledge of Marital Rights

K. Waivers

L. Choice of Governing Law

1. Choice of Governing Law Generally

2. Selection of State Whose Law Will Govern

3. Substantial Relationship

4. Fundamental Policy of Forum State

5. Selection of Governing Statutory or Case Law

6. Selection of Law Governing Dispute Resolution

M. Severability

N. No Contest Clauses

1. Loser Pays Attorney's Fees Provision

2. Forfeiture of Property

O. Amendments, Abrogration and Rescission

P. Sunset Provisions

Q. Arbitration of Future Disputes

R. Effect of Fault on Parties’ Rights

S. Schedules and Attachments

T. Execution Formalities


Working Papers

Table of Worksheets

Worksheet 1 Personal Information Worksheet and Questionnaire - Premarital or Postmarital (Non-Separation) Agreement

Worksheet 2 Checklist for Validity and Execution of Agreement

Worksheet 3 Checklist - Advice to and Dealing with Unrepresented Party

Worksheet 4 Consent to Joint Representation 1

Worksheet 5 Checklist – Disposition of Property and Spousal Rights

Worksheet 6 Model Premarital Agreement

Worksheet 7 Additional Sample Agreement Provisions - Premarital Agreement

Worksheet 8 Client Advice Letter

Worksheet 9 Statutory/Case Authority for Premarital Agreements at Death/Divorce

Worksheet 10 Statutory/Case Authority for Postmarital Agreements at Death/Divorce

Worksheet 11 Summary of Law – Domestic Partnership Agreements

Worksheet 12 Text of 1983 Uniform Premarital Agreement Act







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