Going beyond the limited focus of a drafting-oriented treatise, this updated and expanded edition of Attacking and Defending Marital Agreements answers the need for an in-depth examination of the questions of validity and construction of these agreements. Written by Brett R. Turner and Laura W....
Going beyond the limited focus of a drafting-oriented treatise, this updated and expanded edition of Attacking and Defending Marital Agreements answers the need for an in-depth examination of the questions of validity and construction of these agreements. Written by Brett R. Turner and Laura W. Morgan, both well-known professional research attorneys who focus on family law topics, this is still the only book written primarily to address what happens after the agreement is signed by the two parties.
While the authors offer thoughtful drafting tips at appropriate points, their primary focus is upon the twin issues of validity and construction. They provide well-researched guidance to the family lawyer faced with making and evaluating arguments on the validity and construction of marital agreements. The authors approach these questions by assuming that the reader has no independent knowledge of what took place during the negotiation of the agreement, as in most cases the court lacks this type of knowledge. As a result, the authors are able to approach issues of validity and construction from the same viewpoint as the court when it is asked to resolve these questions. There's often the temptation to employ an argument that, although it attempts to score a 'home-run' result, has not yet been fully evaluated by the courts. Instead, by being able to identify and make the best argument possible, the authors show how the lawyer can achieve a result that substantially benefits the client.
Throughout the book, the authors demonstrate which are the strongest arguments the lawyer can use to provide clients with the most significant benefits. The text, clear and readable, describes arguments that have gathered some in the available case law. Possible arguments are described, and the general strengths and weaknesses of each are discussed. From their research the authors have observed the types of provisions that tend to cause problems for one or both parties. This knowledge helps the practitioner avoid potential problems in the drafting process since these provisions, while often not essential to the main focus of the agreement, can ultimately cause more harm than good. At appropriate points, the authors offer practical and strategic tips for drafting marital agreements.
Extensive citations to caselaw are provided in footnotes to make the text easier to follow. Appendices include a 'mini-encyclopedia' of ambiguous marital agreement provisions and their construction by the courts, and discovery materials on the validity of marital agreements and on the validity of antenuptial agreements, plus a current bibliography, a 73-page table of cases, and comprehensive index.