Contracts II professor Telman Fall 2015 Exercise 8

Contracts II
Professor Telman
Fall 2015
Exercise 8

Nataliya and William began dating through an international internet dating service. Nataliya was Ukrainian, and her English skills were rudimentary. William spoke no Urkainian. Nonetheless, in September, Nataliya traveled to the United States to explore the possibility of a long-term relationship with William. By November, Nataliya was pregnant, and with her three-month visa due to expire, she had to either marry William or return to the Ukraine.

William was very much in love with Nataliya, but he had two children from a previous marriage and owned valuable real estate, so his attorney urged caution. Before agreeing to marry Nataliya, William insisted that she sign a pre-nuptial agreement which provided that, if the parties divorced, he would retain custody of their children and was not obligated to pay alimony. Nataliya would not be entitled to any of the marital property upon divorce. William told Nataliya (inaccurately) that such pre-nuptial agreements were standard in the jurisdiction and were required before a U.S. citizen could marry a non-U.S. citizen.

The pre-nuptial agreement was long and complex. Nataliya could not understand it. She attempted to translate it but the document contained technical language that she could not understand even when it was translated. She had no funds to hire a lawyer to help her understand the document.

Nataliya had no job and was entirely dependent upon William. In addition, she was terrified about returning to Ukraine. Pregnant and without a profession, her prospects in Ukraine were extremely dismal. She signed the pre-nuptial agreement in late November and the pair was married in December.

Three years later, William and Nataliya separated. Nataliya was now proficient in English and had launched her own career. She sued for divorce and sought custody of the couple’s child, child support, an equitable distribution of the marital property and alimony. William moved for dismissal, claiming that because Nataliya signed the pre-nuptial agreement, she relinquished any right to the legal claims she was attempting to make.

The law in the jurisdiction upholds pre-nuptial agreements if they are entered into freely, fairly and in good faith by parties legally competent to contract. In order to be enforceable, the agreement must be free from duress, undue influence, fraud, misrepresentation and unconscionability.

You are clerking for the judge to whom this case was assigned. The judge has asked you to prepare a bench memo on the enforceability of the pre-nuptial agreement. A bench memo identifies the key legal issues and presents the best arguments for each side on those issues. Draft the memo.