Family Law Ch. 4
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Agreements before marriage?
After marriage agreements?
Never marry agreements?
Traditional view on premarital agreements?
- Divorce planning provisions were though to encourage or promote divorce
- Courts took a paternal prespective towards women.
Modern view on premarital agreements?
- Little evidence that prenups promote divorce
- Provides predictability
- Women no longer need to be protected by the courts
- Seen as promoting domestic happiness & resolving potential litigation.
Purpose of Premarital agreements?
- Protects children of previous marriages
- Protects asset (before or individually gained during the marriage)
- Establishes the rights and expectations of the parties
- Uniform Premarital Agreement Act
- Made in the contemplation of marriage and effective upon the marriage
- Must be in writing
- Signed by the parties
When is the UPAA not enforceable?
- Did not execute voluntarily
- Did not have the capacity to enter into the contract
- Disclosure did not occur and enforcement would be unconscionable.
- Non-disclosure was not waived in writing.
Does Indiana have the UPAA?
- Child Custody
- Child Support
- Illegal provisions
- Against public policy
- Social Change - cohabitating instead of marriage
- Cohabitation agreement - a contract that specifies rights and responsibilities for people intending to live together
- a lawsuit for support against a cohabitating partner
- Not in Indiana
Marvin v. Marvin?
First case to recognize a contract between cohabitants.
an agreement between the parties regarding the specific terms. (parties do not generally negotiate the terms of their roles and expectations)
The intention of the parties is inferred by their conduct. (How did the parties conduct themselves in the relationship?)
- No actual contract has been entered into
- One party has been unjustly enriched
- Imposed by the court
Cohabiting couple works on a business enterprise that is owned by one of the parties. (Like dissolution of a partnership, assets of company broken down)
one party, the trustee holds legal title for the benefit of the beneficiary.
Imposed by the courts to avoid unjust enrichment when there is no intent between the parties to create a trust.
Indiana has allowed people to recover based on...
express contract or equitable contract theory such as unjust enrichment.
Establishment Clause of the 1st amendment (For Same-Sex)
"If you deny same-sex marriages, you are supporting Christianity" (Church & State are suppose to be separated)
Fundamental Right (For same-sex)
Loving v. Virginia - fundamental right to marry regardless of race.
Equal Rights Amendment? (For same-sex)
Not allowing same-sex marriage violations the rights of the constitution.
Compelling interest for no same-sex
Marriage promotes procreation and instills social values
Full Faith and Credit clause?
States are able to make their own laws and recognize other state laws.
- Defense of Marriage Act
- Created by congress; removed the "full faith and credit" clause from marriage.
- Same-Sex marriage will never get their rights on a federal level.
Why does Indiana say No?
Federal & State Efforts to ban same-sex
- Federal: DOMA and Federal Marriage Amendment (Proposed to U.S. Constitution)
- States: statutes defining marriage to a man and woman. State constitution amendment.
Alternatives to marriage?
- Civil Unions
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