Archive for the ‘Promise to Marry’ Category

Prenuptial Agreements

Monday, April 5th, 2010

A prenuptial agreement is a contract entered into by two parties before marriage. The contract normally covers property owned by either of the parties before the marriage and the disposition of that property upon divorce or death of either party. When the marital property is divided equitably during divorce, property owned by the parties separately before marriage is typically not included; if the parties have preserved and maintained separate property together, however, or if the property has appreciated significantly in value, it may have become marital property. Having a contract in place to preserve its non-marital status is the only way to ensure that the disposition of the property is as the owner desires.

The requirements for a prenuptial agreement are essentially the same as any other contract. Both parties must enter the contract freely and knowingly in good faith. Both parties must disclose their assets to the other fully and fairly before the agreement is made. “Fully and fairly” is a subjective standard and is decided based on the education and general sophistication of the parties, the objective fairness of the terms, and basically the circumstances surrounding the agreement. It is not necessary that every item owned by either party be listed specifically, but that each party be made aware of the total assets and approximate value and number thereof.

A prenuptial agreement is considered to be signed freely and without duress even if the marriage is offered only on the grounds that the agreement will be signed. The agreement should be made in writing, although in at least one case an oral agreement was honored. Of course, in that instance (Hall v. Jeffers, 767 S.W.2d 654 (Tenn. App. ES 1988)), the husband’s brother murdered the wife on the day that the two were to be divorced. Because the two parties had sworn to an oral prenuptial agreement in the divorce pleadings, the court held the agreement to be enforceable and that the husband was not a surviving spouse for purposes of the wife’s estate.

Drafting and enacting a valid prenuptial agreement can be a complicated issue and should not be undertaken lightly. If you need a prenuptial contract or have questions about a prenuptial agreement already in place, you should consult an attorney. For more information on marriage and other family law issues, click here.

Breach of Promise to Marry

Monday, November 2nd, 2009

In Tennessee, breaching a promise to marry is grounds for a civil suit. The claim is interesting in that the nature of the analysis is essentially contractual, but damages are calculated for the tort of injury to reputation or character. In order to be a legal “promise to marry,” steps beyond a verbal statement must be taken: the promise must be in writing; signed by the party to be charged or proved by testimony of two unbiased witnesses; and all normal contract elements must be shown. As with any contract, the elements include a “meeting of the minds” and definite agreement on specific and explicit terms.

In order to be actionable, there must also be a breach of that contract. That breach can take several forms, the most common of which are verbal or written statement of refusal to marriage; nonperformance over an unreasonable period; and taking an action that prevents performance (such as marrying someone else or taking an oath of celibacy to become a priest). “An unreasonable period” should be easy to calculate, since a valid contract to marry should lay out a timeframe for performance.

When calculating the damages for breach of promise to marry, the court determines the extent of the injury to the plaintiff. Because there are no monetary damages, the court considers factors such as the age and experience of the plaintiff and the relationship between the parties after the breach – if the two remain close friends and continue as they had been, the breach caused little injury and damages may not be appropriate.

There exist also, of course, some defenses to a breach of promise to marry suit. If the suing party gave birth to a child other than that of the promisor, the promisor is not liable for the breach. If the marriage is illegal, the contract is unenforceable under normal contract principles. If the promise is to marry after one party obtains a divorce, the promise is unenforceable. If the promisor dies, the action abates; if the promisee dies, the action abates unless there is proof of special damage to his or her estate. If the promisor was not at the age of majority when the contract was created, the contract is invalid; the converse is not true.

This is just a brief overview of the breach of a promise to marry in Tennessee. The grounds for suit and the potential damages vary with the situation. Further information about family law issues can be found here.