Baker&Taylor目次情報
PART I THE LAW OF PREMARITAL AGREEMENTS 1 (114)
1 Introduction 3 (10)
§ 1.01 Definition and Terminology 3 (1)
§ 1.02 Overview 3 (1)
§ 1.03 Role of Counsel 4 (2)
§ 1.04 History of the Law of 6 (3)
Premarital Agreements
(a) Premarital Agreements before Posner 6 (1)
v. Posner
(b) Posner v. Posner and Premarital 6 (2)
Agreements at Divorce
(c) The Uniform Premarital Agreement 8 (1)
Act (UPAA)
(d) Evolution of the Law of Validity 8 (1)
(e) Trend toward Enforceability of 8 (1)
Virtually All Premarital Agreements
under Virtually All Circumstances
§ 1.05 Scope of Premarital Agreements 9 (1)
§ 1.06 Subjects on Which Parties' 10 (3)
Rights to Contract Are Limited
2 Criteria for an Enforceable Premarital 13 (18)
Agreement
§ 2.01 Scope of This Chapter 13 (1)
§ 2.02 Essential Contractual Elements 13 (2)
(a) Consideration 14 (1)
(b) Consideration for Same-Sex 14 (1)
Premarital Agreement
(c) Formalities 15 (1)
(d) Legal Capacity 15 (1)
§ 2.03 Approaches to Determining 15 (1)
Validity: Process vs. Substance
§ 2.04 Fiduciary or Confidential 16 (2)
Relationship
§ 2.05 Burden of Proof of 18 (2)
Enforceable Premarital Agreement
(a) Proof of Existence and Terms of 18 (1)
Agreement
(b) Burden of Proof of Validity 18 (2)
§ 2.06 Independent Advice as a 20 (1)
Prerequisite to Validity
§ 2.07 Requirements for Validity: 21 (4)
Procedural Fairness States
(a) Uniform Premarital Agreement Act 21 (3)
(UPAA) and Procedural Fairness States
(b) UPAA Plus 24 (1)
§ 2.08 Requirements for Validity: 25 (1)
Substantive Fairness States
§ 2.09 American Law Institute 26 (3)
Recommendations
§ 2.10 Conclusion 29 (2)
3 Creating a Valid Agreement 31 (50)
§ 3.01 Scope of This Chapter 31 (1)
§ 3.02 Legal Capacity 31 (3)
§ 3.03 Voluntariness 34 (4)
(a) Criteria to Determine Voluntariness 34 (2)
(b) Actual Negotiation or Opportunity 36 (2)
to Negotiate Terms
§ 3.04 Duress, Undue Influence, 38 (9)
Overreaching
(a) What Constitutes Duress or Undue 38 (1)
Influence and What Does Not
(b) Timing of Presentation 39 (2)
(c) Threat Not to Marry 41 (1)
(d) Pregnant Bride 42 (1)
(e) Language Barrier; Immigration Visa 43 (1)
Set to Expire
(f) Emotional Distress (Didn't Want to 44 (1)
Do It)
(g) Unequal Bargaining Power 44 (1)
(h) Pre-Execution Oral Promise or 45 (1)
Unexpressed Intent
(i) Deliberate Ignorance (Didn't Read 46 (1)
Before Signing)
(j) Passion 46 (1)
§ 3.05 Independent Counsel 47 (4)
(a) Actual Advice of Independent Counsel 47 (1)
(b) Signing against Legal Advice 48 (1)
(c) Advice and Opportunity to Obtain 48 (2)
Independent Counsel
(d) Role of Proponent's Counsel in 50 (1)
Selection of Lawyer for Other Party
§ 3.06 Knowledge of Marital Rights 51 (3)
§ 3.07 Financial Disclosure 54 (15)
(a) Overview 54 (1)
(b) Mechanics and Content of Financial 55 (5)
Disclosure
(c) Disclosure Regarding Closely Held 60 (2)
Business
(d) Disclosure of Future Inheritance, 62 (1)
Bonus, or Other Expectancies
(e) Disclosure of Other Hard-to-Value 62 (1)
Assets
(f) Waiver of Financial Disclosure 63 (2)
(g) Misrepresentation or Fraud in 65 (2)
Disclosure
(h) Relationship between Financial 67 (1)
Disclosure, Waiver of Disclosure, and
Independent Counsel
(i) Addressing Privacy Concerns in the 67 (2)
Disclosure of Financial Data
§ 3.08 Substantive Fairness or 69 (9)
Conscionability of Terms
(a) Overview 69 (1)
(b) Unconscionability or Unfairness at 70 (4)
Execution
(c) The Second Look: Unfairness or 74 (3)
Unconscionability at Divorce
(d) Too Generous---Too Bad 77 (1)
§ 3.09 Summary---Best Practices 78 (3)
4 Spousal Support 81 (16)
§ 4.01 Overview 81 (1)
§ 4.02 Enforceability of Premarital 82 (7)
Agreement Provisions Fixing or Waiving
Post-Divorce Spousal Support
(a) Minority Position: No Premarital 82 (1)
Waiver Permitted
(b) Majority Position: Premarital 83 (1)
Agreement Fixing or Waiving
Post-Divorce Spousal Support Generally
Enforceable
(c) Circumstances under Which Court May 83 (4)
Refuse Enforcement of Post-Divorce
Alimony Waiver
(d) Enforceability of Premarital 87 (1)
Support Waiver Undetermined
(e) Enforceability of Support Waiver 87 (2)
with Respect to Resident Alien Spouse
or Former Spouse
(f) Enforceability of Spousal Support 89 (1)
Waiver in a Domestic Violence Proceeding
§ 4.03 Enforceability of Provision 89 (1)
Fixing Support When It Is the Support
Payor Who Seeks Relief from the Terms of
Agreement
§ 4.04 Enforceability of Provisions 90 (5)
Fixing or Waiving Support during Marriage
(a) Overview 90 (1)
(b) Enforceability of Support Waiver in 91 (2)
Suit for Separate Maintenance or during
Pendency of Divorce Proceeding
(c) Premarital Support Waiver as 93 (2)
Affecting Spousal Liability to Third
Parties: The Necessaries Doctrine
(d) Premarital Support Waiver as 95 (1)
Affecting Liability for Medicaid
Recoupment
§ 4.05 Insulating a Waiver of 95 (2)
Alimony from Successful Attack
5 Lawyer's Fees and Costs 97 (8)
§ 5.01 Overview 97 (1)
§ 5.02 Fee Shifting in the Absence 98 (1)
of Contract
§ 5.03 Enforceability of Contractual 99 (2)
Waiver of Fees in Divorce
§ 5.04 Enforceability of Fee Waiver 101(1)
for Custody and Child Support
§ 5.05 Prevailing Party (Loser-Pays) 102(3)
Fees
6 Child Provisions, Other Nonfinancial 105(10)
Provisions, and Provisions regulating the
Ongoing Marriage
§ 6.01 Overview 105(1)
§ 6.02 Parentage, Parental Rights, 106(3)
and Child Rearing during Marriage and
after Divorce
(a) Custody of Minor Child after 106(1)
Divorce or Dissolution
(b) Religious Upbringing of Children 106(2)
(c) Parentage, de Facto Parenthood, and 108(1)
Parental Rights
§ 6.03 Provisions Regarding 109(1)
Religious Divorce
§ 6.04 Grounds of Divorce 110(2)
(a) Marital Misconduct and Penalty for 110(1)
Fault Divorce
(b) Waiver of Fault Grounds of Divorce 111(1)
§ 6.05 Living Expenses and Money 112(3)
Management during Marriage
PART II ROLE OF COUNSEL, ETHICS, AND 115(42)
NEGOTIATING THE AGREEMENT
7 Ethics and Premarital Agreements 117(24)
§ 7.01 Overview 117(2)
§ 7.02 Dealing with a Client Whose 119(3)
Capacity to Contract May Be Diminished
§ 7.03 Role of Counsel for the 122(7)
Proponent in Dealing with an
Unrepresented Party
(a) Advice to Unrepresented Party to 122(2)
Get Independent Counsel
(b) Assistance to Unrepresented Party 124(1)
in Selection of Counsel
(c) Payment of Fees of Unrepresented 124(1)
Party
(d) Meeting with Unrepresented Party; 124(3)
Providing Explanation of Rights
(e) Dealing with an Unrepresented Party 127(2)
with Whom the Lawyer Has a Prior
Relationship
§ 7.04 Ethical Issues and Counsel 129(1)
for the Economically Weaker Client
§ 7.05 Joint Representation 130(9)
(a) Overview 130(2)
(b) Directly Adverse Joint 132(3)
Representation and Waiver
(c) Joint Representation: Lawyer as 135(2)
Mere Scrivener
(d) Avoiding Unintentional Joint 137(2)
Representation
§ 7.06 Summary: Best Practices 139(2)
8 Information Gathering, Preparation For, 141(16)
And Negotiating the Terms
§ 8.01 Overview 141(1)
§ 8.02 New Client Intake 142(1)
§ 8.03 The Initial Consultation 143(8)
(a) Information Gathering 143(1)
(b) Client Questions about Premarital 144(4)
Agreements
(c) Discussion of Applicable Law in the 148(1)
Absence of Agreement
(d) Determining Proponent's Objectives 148(1)
(e) Premarital Agreement versus Other 149(2)
Methods of Protecting Assets
(f) Assessing the Client's Bottom Line 151(1)
§ 8.04 Conduct of Negotiations 151(3)
(a) Presentation of the Terms 151(1)
(b) Process Options for Conduct of 152(2)
Negotiations
§ 8.05 Communications 154(3)
PART III POST EXECUTION ISSUES 157(38)
9 Amendments, Postmarital Agreements, 159(14)
Rescission, and Abandonment
§ 9.01 Overview 159(1)
§ 9.02 Formal Amendment to 160(1)
Premarital Agreement
§ 9.03 Cancelation of Premarital 161(1)
Agreement
§ 9.04 Oral Amendment to Premarital 161(1)
Agreement
§ 9.05 Postmarital Agreements 162(2)
§ 9.06 Termination of Engagement 164(1)
Followed by Reconciliation
§ 9.07 Separation or Divorce 165(1)
Followed by Reconciliation
§ 9.08 Purported Oral Revocation 165(1)
§ 9.09 Postmarital Conduct 166(1)
Inconsistent with Continued Viability of
Agreement
§ 9.10 Parties Become Business 167(1)
Partners
§ 9.11 Provision of More Generous 168(1)
Benefits under Will or Inter Vivos
Transfer
§ 9.12 Breach of Agreement 168(1)
§ 9.13 Disadvantageous Change of 169(1)
Position
§ 9.14 Conduct That Renders 170(1)
Agreement Unfair at Enforcement
§ 9.15 Change of Fortunes 171(1)
§ 9.16 Marital Misconduct, Adultery, 171(2)
Domestic Abuse
10 Ratification and Estoppel 173(4)
11 Commingling, Retitling, And Gifts 177(10)
§ 11.01 Overview 177(1)
§ 11.02 Commingling 178(1)
§ 11.03 Effect of Titling Property 179(3)
Jointly or of Transfer to Sole Title on
Parties' Rights at Divorce
§ 11.04 Effect of Joint Title with 182(1)
Right of Survivorship at Death
§ 11.05 Use of Funds from Joint Bank 183(1)
Account
§ 11.06 Failure to Keep Adequate 183(1)
Financial Records
§ 11.07 Commingling to the Detriment 184(1)
of One Party Where Other Party Controls
Finances
§ 11.08 Provisions for Surviving 184(1)
Spouse at Variance with Provisions
Required by Agreement
§ 11.09 Parties Become Business 185(2)
Partners
12 Waste and Dissipation; Consumption of 187(8)
Assets, Sales, and Transfers to Third
Parties; Bankruptcy
§ 12.01 Overview 187(1)
§ 12.02 Bona Fide Sale to Third Party 188(1)
§ 12.03 Gifts to and Support for 189(1)
Children, Former Spouses, and Other
Family Members
§ 12.04 Remarriage after Death of 190(1)
Other Spouse
§ 12.05 Post-Death Transfer in 190(1)
Derogation of Contractual Obligations
§ 12.06 Financial Mismanagement, Bad 191(2)
Investments, Frivolous Expenditures,
Dissipation, and Other Misconduct
§ 12.07 Bankruptcy 193(2)
PART IV DRAFTING THE AGREEMENT 195(126)
Overview 195(4)
13 Model Title Controls Agreement with 199(94)
Provisions for Weaker Party
Recitals: Comment 199(3)
Recitals: Model Text 202(2)
Definitions, Property and Income: 204(1)
Comment
Definitions, Property and Income: Model 204(2)
Text
Definitions, Separate and Marital 206(3)
Property: Comment
Definitions, Marital and Separate 209(3)
Property: Model Text
Other Terms Relating to Determination 212(2)
of Separate and Marital Property:
Comment
Other Terms Relating to Determination 214(3)
of Separate and Marital Property: Model
Text
Definitions, Separate and Marital Debt: 217(2)
Comment
Definitions, Separate and Marital Debt: 219(1)
Model Text
Definitions, Marital Separation; during 219(3)
the Marriage: Comment
Definitions, Marital Separation; during 222(1)
the Marriage: Model Text
Rights and Obligations during the 223(1)
Marriage: Comment
Rights and Obligations during the 224(2)
Marriage: Model Text
Payment of Expenses during the 226(3)
Marriage: Comment
Cash Gifts: Comment 229(1)
Property Rights upon Death of a Party: 230(1)
Comment
Property Rights upon Death of a Party: 231(5)
Model Text
Disposition of Retirement and Survivor 236(7)
Benefits: Comment
Disposition of Retirement and Survivor 243(2)
Benefits: Model Text
Special Provisions for Primary Marital 245(2)
Home: Comment
Special Provisions for Primary Marital 247(5)
Home: Model Text
Property Rights upon Dissolution: 252(4)
Comment
Property Rights upon Dissolution: Model 256(3)
Text
Spousal Support upon Dissolution: 259(3)
Comment
Spousal Support upon Dissolution: Model 262(4)
Text
Lawyers' Fees and Costs: Comment 266(2)
Lawyers' Fees and Costs: Model Text 268(1)
Voluntary Execution and Disclosures: 269(1)
Comment
Voluntary Execution and Disclosures: 270(3)
Model Text
Taxes: Comment 273(1)
Taxes: Model Text 273(2)
Miscellaneous Provisions: Comment 275(1)
Complete Agreement: Model Text 275(1)
Furnishing Other Instruments: Comment 275(1)
Furnishing Other Instruments: Model Text 275(1)
Third-Party Beneficiary Rights: Comment 276(1)
Third-Party Beneficiary Rights: Model 277(1)
Text
Severability: Comment 277(2)
Severability: Model Text 279(1)
Consideration: Comment 279(1)
Consideration: Model Text 280(1)
Revocation and Modification: Comment 280(1)
Revocation and Modification: Model Text 280(1)
Governing Law: Comment 281(3)
Governing Law: Model Text 284(1)
Construction against Drafter: Comment 284(1)
Construction against Drafter: Model Text 285(1)
Confidentiality: Comment 285(1)
Confidentiality: Model Text 285(1)
Binding Arbitration: Comment 286(3)
Binding Arbitration: Model Text 289(1)
Execution Formalities: Comment 290(1)
Execution Formalities: Model Text 291(2)
14 Model Terms for Same-Sex Premarital 293(14)
Agreement
Recitals: Comment 293(1)
Recitals: Model Text 294(1)
Definitions, Marriage; Dissolution: 295(1)
Comment
Definitions, Marriage; Dissolution: 295(2)
Model Text
Waiver of Property Rights at Death: 297(1)
Comment
Waiver of Property Rights at Death; 298(1)
Model Text
Disposition of Retirement Benefits: 298(1)
Comment
Disposition of Retirement Benefits: 299(1)
Model Text
Property Rights upon Dissolution: 300(1)
Comment
Property Rights upon Dissolution: Model 300(1)
Text
Waiver of Post-Dissolution Support: 301(1)
Comment
Waiver of Post-Dissolution Support: 301(1)
Model Text
Additional Waivers: Comment 302(1)
Additional Waivers: Model Text 302(1)
Voluntary Execution: Comment 303(1)
Voluntary Execution: Model Text 303(1)
Taxes: Comment 304(1)
Taxes: Model Text 304(1)
Consideration and Effective Date: 305(1)
Comment
Consideration and Effective Date: Model 306(1)
Text
Governing Law: Comment 306(1)
Governing Law: Model Text 306(1)
15 Shared Property Agreement 307(14)
Definitions, Separate and Marital 310(2)
Property: Comment
Definitions, Separate and Marital 312(3)
Property: Model Text
Definition, Mixed (or Hybrid) Property: 315(1)
Comment
Definition, Mixed Property: Model Text 316(1)
Definitions, Separate and Marital Debt: 317(1)
Comment
Definitions, Separate and Marital Debt: 317(1)
Model Text
Disposition of Property at Death: 318(1)
Comment
Disposition of Property at Death: Model 318(1)
Text
Disposition of Retirement Benefits at 319(1)
Divorce: Comment
Disposition of Retirement Benefits at 320(1)
Divorce: Model Text
APPENDIX A Text Of Uniform Premarital 321(4)
Agreement Act
APPENDIX B State Law Summary---Premarital 325(40)
Agreements
APPENDIX C Personal Information Worksheet And 365(18)
Questionnaire
APPENDIX D Basic Title Controls Agreement 383(26)
APPENDIX E Additional and Optional Terms 409(10)
Transfers during Marriage
Payment of Expenses during the Marriage 410(2)
Provisions for Spouse at Death 412(2)
Provisions for Primary Marital Residence 414(3)
Property Transfer upon Separation 417(1)
Pre-Execution Waiver of Financial 417(1)
Disclosure as Requred by the UPAA
Provisions to Discourage Challenge to 418(1)
Validity of Agreement
APPENDIX F Letters To Client 419(8)
Client Letter---Instructions for Execution 419(2)
Client Letter---Post-Execution Checklist 421(3)
to Carry Out Terms of Agreement
Client Letter---Advice Not to Sign 424(3)
APPENDIX G Letters To Unrepresented Party 427(6)
First Letter to Unrepresented Party 427(2)
Second Letter to Unrepresented Party 429(4)
Index 433
