CHAPTER TWO FAMILY LAW Week Two: Homework Assignment 1.

Assignment said to determine if pre-marital agreements are recognized in the State of Maryland, no is the affirmative answer. 12 a. According to the text, our legal system emphasizes freedom of contract. A corollary of this principle is that once parties have entered into a contract, they are entitled to rely upon it, and courts will protect the expectancies that arise from the terms of the agreement. If a court finds that there is no proof of conduct that arises to the level of fraud, misrepresentation, duress, or the like, then courts typically will not refuse to enforce a contact because it is more favorable to one party, which have to be established for consideration of unfairness see in re Bonds vs. Bonds (Statsky, 2002, page 76). i. As a general rule, adherence to the freedom-of-contract principle should be upheld unless the deal is more favorable or unfair. ii. The primary exception to the freedom-of-contract principle is unconscionability. b. The court reviews the agreement for evidence of unfairness: through the process of procedural fairness or substantive fairness, which is known as a the hands-on approach c. The contracts are called just what they are premarital contracts, in a state other than Maryland. According to the text, the parties substitute their own terms for state laws that determine rights of support and property distribution between divorcing spouses. Therefore, the subject matter of premarital contracts is quite different from the more ordinary contracts. d. A typical contract stand at an arms-length and are not intimately connected. On the contract, parties to a premarital agreement are in an intimate relationship (confidential relationship). e. Sometimes the parties are bargaining of unequal bargaining power, such as a wealthy male. f. The performance of contractual obligations usually begins within a reasonably short and clearly time period after the contact is executed. On the contrast, premarital contracts time of performance is uncertain or may never come to be since the triggering event is divorce. g. Currently there is an uneasiness of for the standard of review for the contractualization of family life, which makes it similar to the commercial realm. “Courts may be reluctant to fully import legal standards that were developed in the realm of impersonal dealings into the realm of intimate relationships.” h. In states where premarital contracts are regulated by State Code, and they have probably adopted or influence by the Uniform Premarital Agreement Act, the trend is to treat the premarital contract like an ordinary contract agreement with a corresponding emphasis upon individual autonomy and choice.3
1

Uniformed Law Commissioners. The National Conference of Uniform Commissioners on Uniform State Laws. Reviewed on October 12, 2007. See states that adopted the Uniform Premarital Act. 2 Maryland State Annotated Code. Family Law. Michie’s LexisNexis. Reviewed on October 12, 2007. See entire Family statute 3 J. Shoshanna Ehrlich, (2008). “Family Law for Paralegals.” 4th edition. Aspen. New York. In re, Gail Frommer Brod, “Premarital Agreements and gender Justice,” 6 Yale J.L. & Feminism 229 (1994); Leah Guggenheim, “A

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CHAPTER TWO FAMILY LAW i. The requirement of full and fair disclosure is usually the most important consideration and the general rule is that both parties have an affirmative duty y to make full disclosure as soon as possible. i. The courts evaluate the procedural fairness by determining whether the challenging apart to the agreement understood its provision as the time of signing; whether she or he was made aware of the legal rights being aware of the legal rights waved in the entry of the agreement and whether the agreement was reviewed before an independent attorney etc. Lastly, to determine if the entry into the agreement was free and voluntary.i Then there are courts that use the flexible approach to evaluate the formation of the fairness in the premarital contract. However, if the outcome is fair then the courts may not be too concerned with the procedural irregularities (Erhich, pages 78 through 81). j. The Simeone decision is illustrative of the growing emphasis on considerations of contractual freedom over contractual fairness. The Pennsylvania court in the Simeone decision limited the scope of review for procedural fairness to considerations of adequate disclosure and also held that the terms of an agreement should not be reviewed to determine if they are fair. k. Fairness can be measured as it existed at the time of the contract was executed or as it exists at the time of performance or both. i. A court evaluates the agreement in light of the circumstances as they existed at the time the contact was executed. In some jurisdictions alimony waivers are not enforced. ii. Many courts will determine if the through review to see if they are fair at the time of divorce; also reviewing support related clauses to see their fairness which is known as the second glance doctrine. l. The only proper role of the court is to protect the legitimate expectations arising from the agreement. Many courts will invalidate only a term waiving or limiting support rights where enforcement would leave a party unable to meet basic needs or would force him or her onto public’s assistance. On the other hand other courts may invalidate a clause as long as poverty is not threatened. 2. The letter that I would draft to the client is that I would thank her for the call of the visit. Also I would tell the client about our retainer fee and any additional paper work that should be completed. I also would tell the client about our extensive client family history report form, so that the two of them will know where everything is and it is about six pages long. I would be very clear with the client that Maryland does not honor same sex marriages and only values agreements regarding the dissolution of Marriage in Title 8 of the State Annotated Code. As noted in a highlighted case in Maryland, http://mdcourts.gov/coappeals/highlightedcases/deane/appellantsbrief.pdf. ii However, if the case has something to do with noteworthy family relations the Case Stanley vs. Stanley the court took a second glance and remanded it back to the trial court with great explanation. Next, in the letter I would go on to tell the client that no premarital agreement can be enforced in the State of Maryland.
Modes Proposal: The Feminim Economics of Drafting Premarital Agreements, 17 Women’s Rights L. Rep. 147 (1996).

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CHAPTER TWO FAMILY LAW 3. Again, there are no premarital agreements in Maryland, but for the sake of cooperation, and then I will go along with the lesson plan. To: Jane Doe From: John Sample, Esq. Date: October 12, 2007 Name of Case: Doe vs. Name Office File # 321-5 Court Docket # N/A Re: Pre-marriage counseling

The client came into the office and she was concerned about her premarital agreement. I first advise her that if she was not married in the state of Maryland then she may want to go back into the State in which she came from. However, if she were in Maryland then I would have suggested that she move forward with a Premarital preparation course, pursuant to Maryland Annotated Code § 2-404. In the State of Pennsylvania, the case of Simeone decision stated that there was no time for ignorance. The client also had another issue which was that she believed that the alimony waiver was unfair given that her husband is extremely unfair. So I tell her that while in Maryland I can surely help her with the dissolution of Marriage, pursuant to Maryland State Annotated Code § 8-103. However, in Maryland there are no modifications for alimony waiver. In closing, this is not a time for the trend to change. The State of Maryland is just below the Mason-Dixon Line is very old, conservative but traditional. Therefore at this time, it is not a good time for the State of Maryland to observe or adopt the Uniform Premarital Agreement Contract. Cited references: William P. Statsky, (2002). “Family Law,” 5th ed. West: Albany J. Shoshanna Ehrlich. (2008). “Family Law for Paralegals,” 4th ed. Aspen: New York, ISBN: 978-0-7355-6382-7

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CHAPTER TWO FAMILY LAW

Notes: The notes were used to prepare the class discussion and individual assignment respectively.
HG worldwide legal directories, http://www.hg.org/usstates-govt.html Equitable dissolution in a marriage, http://www.dsplaw.com/Word%20docs/fundamentals%20equitable %202006%20final.doc Maine’s affect on children in relation to the UPPA Section 19, http://janus.state.me.us/legis/statutes/19a/title19-Asec606.html UPPA, is repealed in Maine, under Domestic Relations, http://janus.state.me.us/legis/statutes/19/title19ch2sec0.html

UPPA in Pennsylvania, http://www.law.upenn.edu/bll/archives/ulc/fnact99/1980s/upaa83.htm or, http://www.law.upenn.edu/bll/archives/ulc/fnact99/1980s/upaa83.pdf. SECTION 4. EFFECT OF MARRIAGE. A premarital agreement becomes effective upon marriage. Comment - This section establishes a marriage as a prerequisite for the effectiveness of a premarital agreement. As a consequence, the act does not provide for a situation where persons live together without marrying. In that situation, the parties must look to the other law of the jurisdiction (see Marvin v. Marvin, 18 Cal. 3d 660 (1976); judgment after trial modified, 122 Cal. App. 3d 871 (1981)). See also, http://www.scu.edu/law/FacWebPage/Neustadter/contractsebook/main/cases/Marvin.html . California Law regarding non-marital relationships, http://www.kinseylaw.com/clientserv2/famlawservices/marvin/nonmarital.html. George Mason Universities link on case law, http://mason.gmu.edu/~weitzman/marvinv.htm California code, http://64.233.169.104/search?q=cache:XMf88g9UG08J:www.empirestudent.com/images/Family %2520Law,%2520Fall%25202007,%2520Rubin.doc+Marvin+v.+Marvin,+18+Cal. +3d+660+(1976)&hl=en&ct=clnk&cd=5&gl=us. Non-marital summary, http://www.kylewood.com/familylaw/marvin.htm. SECTION 5. AMENDMENT AND REVOCATION. After marriage, a premarital agreement may be amended or revoked only by a written agreement signed by the parties. The amended agreement or the revocation is enforceable without consideration. Comment - This section requires the same formalities of execution for an amendment or revocation of a premarital agreement as are required for its original execution (cf. Estate of Gillilan v. Estate of Gillilan, 406 N.E. 2d 981 (Ind. App. 1980) (agreement may be altered by subsequent agreement but not simply by inconsistent acts). Uniform Laws, http://www.law.cornell.edu/uniform/vol9.html See also, The National Conference of Commissioners on Uniform State Laws (NCCUSL), at http://www.law.upenn.edu/bll/archives/ulc/ulc_final.htm.

See California’s Uniform Premarital Agreement Act, the adoption of the UPAA, http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=01001-02000&file=1610-1617. FAMILY.CODE SECTION 1610-1617 State of Virginia’s Premarital Code, the adoption of the UPAA Title 20-149 , http://leg1.state.va.us/cgibin/legp504.exe?000+cod+20-149.

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Popular Acts, http://www.law.cornell.edu/uscode/topn/ Cherokee Agreement Act, July 1, 1902, ch. 1375, 32 Stat. 716 http://www.law.cornell.edu/search/index.html. Cornell University Law School, http://www.law.cornell.edu/search/index.html The National Conference of Commissioners on Uniform State Laws (NCCUSL), http://www.nccusl.com/Update/ UPAA summary, http://www.nccusl.com/Update/uniformact_summaries/uniformacts-s-upaa.asp. State adoption, http://www.nccusl.com/Update/uniformact_factsheets/uniformacts-fs-upaa.asp Everything you wanted to know about marriage and what laws are used in which state and more, http://www.kylewood.com/familylaw/marvin.htm State of Maryland highlighted cases, Maryland Judiciary Highlighted Cases.

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i

The Pennsylvania court favors the freedom of contract over a fairness approach. The reasoning was that there should not be a requirement of independent counsel would be contrary to traditional principles of contract law, and would constitute a paternalistic and unwarranted interference with the parties’ freedom to enter contracts. Cf. Simeone, 525 Pa. 392, 581 A.2d 162, 167-168, and Elizabeth Barker Brandt, The Uniform Premarital Agreements Act and the Reality of Premarital Agreements in Idaho, 33 Idaho L. Rev. 539 (1997). ii Case of Conway vs. Deane, in the Maryland Court of Appeals, http://mdcourts.gov/coappeals/highlightedcases/deane/appellantsbrief.pdf. Reviewed on October 12, 2007.

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