What is a Waiver of Marital Rights?
A spouse can waive his or her marital rights in all or any part of his or her spouses property, whenever acquired, except as to homestead and exemptions. The waiver of marital rights to spouse’s property should be made by a signed written contract, instrument, or in a joint deed which contains a provision whereby each spouse waives all marital rights to that property, when acquired by the other spouse. This right is set forth in O.C.G.A. § 53-4-20.
There are many reasons why a spouse would not want his or her spouse to acquire a marital interest in his or her property. For example , people generally do not want their property to be subjected to the possibility of a subsequent and unrelated spouse’s claims against it. It could also be that one spouse will come into property that he or she wants to remain solely theirs. A spouse can waive his or her marital rights via a waiver of marital rights form.
Waiver of Marital Rights forms are usually essentially the same thing as a marital property agreement. These forms specifically give up one person’s claim to the property of another person, currently and into the future. Like a contraction marriage contract, a Waiver of Marital Rights will most likely need to be signed in front of a notary public.
Objectives of a Waiver of Marital Rights Form
A waiver of marital rights to marital property form has change of ownership purposes and also can promote the development of the law in Illinois regarding the spouses rights in real estate. In many cases a married couple lives together and as a result the husband may acquire property during the marriage. However, when the husband dies the surviving spouse may claim a dower right in the property or a spousal right to take a percentage of an intestate estate. In some situations a spouse may claim a homestead right in the property, or may even file for divorce and make a claim for half of the value of the property in a divorce settlement.
A waiver of marital rights to property form is intended to waive any and all spousal claims to property. The preprinted form is only a sample in that it must be signed by both husband and wife. The parties may make changes to the form.
Legal Consequences of Waiver of Marital Rights Form
It is common that at some point in the marriage, spouses desire that tht property they have acquired during the marriage be excluded from divorce distribution. Such a situation often arises when one spouse acquired significant pre-marital assets and doesn’t want the marital estate to share such property upon divorce. However, the equitable distribution statute does not look at property as a "marital" or "non-marital" but rather wants to know whether the parties acquired "equitable" rights during the marriage.
As such, spouses often sign a waiver of marital rights to property to protect pre-marital assets from an equitable distribution action. The waiver of marital rights to property essentially operates to waive the inheritable rights that a spouse would have had in pre-marital property owned by the other spouse. In order for them to be enforceable, these documents must be in writing.
The law is clear that they can be enforceable even if executed before marriage. Such was the ruling the Appellate Division in its recent Jason v. Jason decision, which was a case involving interpretation of a waiver of property rights to a premarital residence. The estate’s position was that the waiver was invalid because it was not entered into after the marriage under N.J.S.A. 37:2-33. That provision states that a waiver made before a marriage takes effect when that marriage is solemnized within one year of the waiver. The appellate division found that, regardless of the statute, the agreement was enforceable under the common law of our State.
When to Use a Waiver of Marital Rights Form
A Waiver of Marital Property Rights Form is required in many situations. The following are some common situations requiring a Waiver of Marital Property Rights Form: to execute a prenuptial agreement, during which a Waiver of Marital Property Rights Form will be included in the agreement; at the time of the purchase of property before marriage in which one party intends to keep property separate, rather than make it marital property; to execute a postnuptial agreement, during which the parties may agree to execute a Waiver of Marital Property Rights Form; or when the parties become more sophisticated regarding their marital assets after marriage.
How to Create a Waiver of Marital Rights Form
To properly execute a waiver of marital rights to the property form, the document must be drafted to comply with the following statutory requirements:
- (1) The waiver must be in writing, signed by the party to be charged, and must state the extent to which the rights of that spouse with respect to the property of the other spouse are being waived.
- (2) The waiver may be unconditional or subject to limitations, whether as regards duration, extent , value or otherwise.
- (3) The waiver may extend to rights with respect to the property acquired in the future as well as rights with respect to property already owned.
- (4) The waiver is enforceable without consideration.
- (5) The waiver is binding upon the spouse and all persons or entities claiming under him, for example, a spouse’s estate and heirs in the case of death. However, the waiver can be enforced only by the party to whom the waiver was made.
- (6) The waiver of the rights of a spouse in the property of the other spouse can be waived or released.
Enforcing Your Waiver of Marital Rights Form
Enforcing the Waiver of Marital Property Rights Form
If both parties to a prior legal separation agreement have affirmed in writing that all marital property issues between them have been resolved, such stipulation is binding. Generally, where the parties to a separation agreement make a full and complete disclosure of their assets, causes of action, entitlements, and obligations, a contract is enforced. However, under very limited circumstances, a court may set aside a prior stipulation if some type of misrepresentation occurred. A principal defect which defeats an otherwise enforceable waiver of marital rights generally relates to an allegation that a document was signed without full knowledge of the assets or without independent advice. Courts will not set aside a waiver of rights which arises out of an improvident separation agreement unless there is a showing by the party seeking invalidation of the separation agreement and waiver of rights and fraud in the inducement, or mental incapacity of the constituent who signed the waiver. To establish the defense of fraud, the party seeking avoidance of a stipulation must show knowledge of the facts, intent to deceive (an intentional misrepresentation or concealment), and reliance by the other party on that intentional misrepresentation or concealment. A party claiming "constructive" fraud arising from a failure to write in a particular provision must demonstrate the requisite omission and a duty to disclose in order to establish such a claim. An example in which courts determined the "full knowledge" or "independent advice" requirements were not met involved a case in which a husband allegedly procured his spouse’s consent to a divorce action and her signature to a waiver of marital property rights by providing her with only a photocopy of the agreement. There, the wife’s attorney asserted that the husband’s act was fraudulent because he maintained an undisclosed intimate relationship with his paramour. He also allegedly proposed that the wife enter into the waiver of rights and accept substitute consideration therefor after his paramour witnessed the wife sign the document. The appellate court upheld the trial court’s determination that the husband’s actions amounted to constructive fraud because he had failed to disclose the existence of his paramour and her involvement in the preparation and execution of the agreement with his wife, which resulted in an unconscionable inequality between the considerations exchanged. The general rule remains, though, that once a separation agreement is executed and duly sworn to, the waiver of marital property rights contained therein will be adhered to. However, the applicability of the general rule is often dependent upon whether the agreement has been incorporated in a judgment of divorce and, if so, whether the language of the judgment is inconsistent with the prior agreement or oral stipulation.
Getting Legal Advice
A lawyer can help you understand your options and advise you on the best way to meet your specific goals. Whether drafting a waiver or advising on one, a lawyer can ensure that the form is as precise and legally sufficient as possible. For example, although a waiver may be in writing, such writing may not rise to the level of a formal enforceable waiver unless certain procedural steps are observed. A lawyer will help ensure that all procedural requirements are met .
If there are cross waivers involved (for example, both you and your partner are waiving your marital property rights to the other), a lawyer can help advise on how to structure the deal so that it is crystal clear that both sides are getting what they bargained for.
For example, what if a waiver is prepared but then rejected and never signed? Or a situation arises where one party files for divorce several years later and refuses to honor the waiver? Would anything prevent the other spouse from fighting the enforceability of the waiver? A lawyer knows how to prepare any necessary documents and correspondence to ensure that parties are in the best position to meet their goals and meet any future challenges head on.