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UPMAA: uniform premarital and marital agreement act (Repping weaker party…
UPMAA: uniform premarital and marital agreement act
Could Vermonters choose another state as Choice of Law in order to have a state that's adopted the UPMAA govern? Go there to sign it?...
Severability clause? If no severability clause & one clause invalid, whole thing invalid?
Public Policy - Prenups to encourage ppl to marry when know divorce rate is high/is quite likely and is financial risk.
Pros: plan for property disposition and even spousal maintenance in event of divorce or death. Predetermine. Prevent giving decision up to judge.
saves money in long term
Weaker party not in position to make demands b/c alternative is don't get married, but: Ask more financially secure party to pay for attorney's fee for economically weaker party? Yes. Other party wants it; they pay for it...
Under UPAA Must Be: Volutnary. If Unconscionable (ok if...) must have adequate financial disclosure, constructive knowledge or effective waiver.
Under UPMAA MUST Be:
If unrepresented; plain language notice of waiver of rights
Fair and adequate financial disclosure
assets, liabilities, amounts and sources of income. Written. Defined benefit pensions, thrift savings (401k), employee sponsored life insurance, cash value life insurance. Ask client about Recent loan applications. Inheritance expectancy (may or may not need to disclose). Trust - vested.
Party presented with agreement has to have access to counsel = time & money
Have to leave time to negotiate w/lawyer or not.
not unconscionable at execution.
Voluntary; not under duress
second Look in some states - at divorce, not death - for fairness at time of divorce.
Defenses: Duress = super hard to successfully claim. Maybe if last minute presentation and big wedding already planned & lack of financial disclosure
More likely to win on improper financial disclosure.
Repping weaker party = get financial info before any negotiation. If comparable parties - may not need right away. Get value of Business - from loan app, insurance app, valuation, key person.....
want reasonable degree of financial security for my client. Dignity after divorce. Want to protect other party but...
Does weaker party actually have some leverage? inheritance. Party with the money really wants the marriage to happen. What plans have already been made & who paid for them?
can client communicate directly with other party? coach them.
1 perspective - always include provisions dealing with death as well as divorce. b/c will is under full control of 1 spouse. how does elective share play into this - bargaining chip...only for probate assets.
Repping Stronger Party - leave time & do negotiation - Make some concessions, so leave room to give & don't give everything at once.
House
can put into life estate at death in prenup = would that override will that gives to heirs?
careful about death-bed separation - where separate while on deathbed which cuts off death rights.
clear drafting is key! both parties will be stuck with it.
can take out business - Clearly Define the pool of assets
address title, time, means of acquisition
can coach beforehand about co-mingling.
VT can waive maintenance...