Presentation on theme: "What are the two arguments that can be made under Kansas domestic relations law to attack the enforceability of the prenuptial agreement? Under the."— Presentation transcript:
What are the two arguments that can be made under Kansas domestic relations law to attack the enforceability of the prenuptial agreement? Under the Kansas Uniform Premarital Agreements Act, premarital agreements are enforceable unless they were: i. not executed voluntarily ; or ii. unconscionable when executed
To determine whether the prenuptial agreement was voluntary the court looks at surrounding facts and circumstances at the time the agreement was entered into. Facts and Circumstances include: timing of the agreement; the parties’ premarital assets, ages, intelligence, education, and experience; Sandy’s lack of legal representation; and her pregnancy
The court would examine the specific terms of the agreement to determine whether it was unconscionable The court would consider whether Chris provided Sandy with a fair and reasonable disclosure of his property or financial obligations before she signed the agreement, unless she expressly waived disclosure in writing or had adequate knowledge of Chris’s property or financial obligations The Court is unlikely to enforce agreement if doing so would force Sandy to seek public assistance.
If the court finds the agreement is not enforceable, What are the factors the court will consider in determining: a.Whether the marital property should be divided and, if so, the factors to consider in determining a proper division of property? b.Whether sandy should be awarded alimony and, if so, the factors to consider in determining a proper amount to be awarded as alimony?
Whether to award: In Kansas, there is no presumption that “alimony” (a.k.a. maintenance payments) will be awarded. Awarded less frequently than in the past, alimony is appropriate when a spouse would not have adequate income after the divorce. The court will base its decision on the one party’s need and the other party’s ability to pay. Proper Amount: The court may award alimony in an amount that is fair, just, and equitable under all of the circumstances essentially applying the same criteria in dividing property: The parties’ age; the duration of the marriage; the property owned by the parties; the parties’ present and future earning capacities; family ties and obligations; dissipation of assets; and the potential tax consequences of the property division and maintenance payments on the respective economic circumstances.
Sandy was about 29 and Chris was about 55. The parties were married for 10 years. It is unknown what property the parties held when they entered into the marriage. It seems reasonable that Sandy had few assets based on age and being a student. Chris, likely came to the marriage with property as he was older, educated, and working as an attorney. Facts indicate that millions of dollars were acquired during the marriage. Chris has significant earning capacity, will stay in the workforce. It is unlikely that Sandy has much work experience or post-secondary education, given her age and status as a student at the time of the marriage.
Based on the information available, it appears that the most significant factors are the disparity in the parties’ earning capacity despite the difference in their ages, Sandy’s apparent inability to support herself through employment at this time and Sandy’s total dependence on Chris for support during their 10 year marriage. Thus, the court should award Sandy alimony, based on her need and the ability of Chris to pay.