UNIFORM PREMARITAL AGREEMENT ACT

The Uniform Premarital Agreement Act (UPAA) was drafted by the Uniform Law Commission (ULC) in 1983, partly in response to the large number of people who were getting married and intending to continue to pursue careers outside the home.  (See PREFATORY NOTE to UNIFORM PREMARITAL AGREEMENT ACT below, at paragraph 1.)  The purpose of the UPAA was to promote more uniformity and predictability between state laws relating to these contracts in an increasing transient society. The UPAA was partly enacted to ensure that a prenup that was validly entered into in one state would be honored by the courts of another state where the couple might get a divorce.  (See PREFATORY NOTE to UNIFORM PREMARITAL AGREEMENT ACT below.)

In 2012, the ULC promulgated the updated and revised Uniform Premarital and Marital Agreements Act (UPMAA), which established procedural and substantive safeguards for marital agreements in an effort to bring them into accord with safeguards for premarital agreements.  In Why States Should Adopt the Uniform Premarital and Marital Agreements Act, published by ULC, National Conference of Commissioners on Uniform State Laws in 2012, the ULC articulated the purpose for updating and replacing the UPAA with the UPMAA:

"In today’s mobile society, it is particularly important that the rules governing the enforceability of premarital and marital agreements be standardized. The UPMAA clarifies and modernizes largely divergent state laws and creates a harmonized and uniform approach to premarital and marital agreements.

Among its attributes, the UPMAA:

·        Requires both premarital agreements and marital agreements to be in writing and declares them to be enforceable without consideration, thereby modernizing existing state law;

·        Offers couples a flexible framework for premarital and marital agreements that promotes responsible planning and informed decision making, and encourages prospective spouses to consider in advance a wide spectrum of issues that may affect their marriage;

·        Provides courts in every state a framework for determining an agreement’s validity, regardless of where it was executed;

·        Permits non-enforcement of agreements that are found to be unconscionable at the time of signing by providing that unconscionability and failure of disclosure are alternative grounds for refusing to enforce an agreement, each adequate on its own;

·        Bars enforcement of an agreement entered into involuntarily or as the result of duress or that limits remedies available to a party for domestic violence; and

·        Affirms traditional choice of law and conflict of laws principles in determining the validity and meaning of premarital and marital agreements."

(Why States Should Adopt the Uniform Premarital and Marital Agreements Act, 2012, Uniform Law Commission, National Conference of Commissioners on Uniform State Laws.)

Colorado and North Dakota adopted the UPMAA in 2013, so now 28 states and the District of Columbia have adopted some version of the UPAA/UPMAA to set forth the clear requirements needed to make a prenuptial agreement enforceable and legally binding in those states. The laws enacted by jurisdictions adopting the UPAA/UPMAA do have variances from state-to-state, but this uniform framework of consistent laws has certainly made it much easier for premarital agreement practitioners to prepare legally-compliant prenups for clients by codifying the requirements.

Here is a list the U.S. jurisdictions that have adopted and enacted a version of the Uniform Premarital Agreement Act or the UPMAA. Click any state listed below to be taken to the statutes comprising its Premarital Agreement Act:

 

Arizona

Arkansas

California

Colorado

Connecticut

Delaware

District of Columbia

Florida

Hawaii

Idaho

Illinois

Indiana

Iowa

Kansas

Maine

Montana

Nebraska

Nevada

New Jersey

New Mexico

North Carolina

North Dakota

Oregon

Rhode Island

South Dakota

Texas

Utah

Virginia

Wisconsin

 

UNIFORM PREMARITAL AGREEMENT ACT
Drafted by the
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
and by it
APPROVED AND RECOMMENDED FOR ENACTMENT
IN ALL THE STATES
at its
ANNUAL CONFERENCE
MEETING IN ITS NINETY-SECOND YEAR
IN BOCA RATON, FLORIDA
JULY 22-29, 1983

UNIFORM PREMARITAL AGREEMENT ACT

 

PREFATORY NOTE

 

The number of marriages between persons previously married and the number of marriages between persons each of whom is intending to continue to pursue a career is steadily increasing. For these and other reasons, it is becoming more and more common for persons contemplating marriage to seek to resolve by agreement certain issues presented by the forthcoming marriage. However, despite a lengthy legal history for these premarital agreements, there is a substantial uncertainty as to the enforceability of all, or a portion, of the provisions of these agreements and a significant lack of uniformity of treatment of these agreements among the states. The problems caused by this uncertainty and nonuniformity are greatly exacerbated by the mobility of our population. Nevertheless, this uncertainty and nonuniformity seem reflective not so much of basic policy differences between the states but rather a result of spasmodic, reflexive response to varying factual circumstances at different times. Accordingly, uniform legislation conforming to modern social policy which provides both certainty and sufficient flexibility to accommodate different circumstances would appear to be both a significant improvement and a goal realistically capable of achievement.

This Act is intended to be relatively limited in scope. Section 1 defines a "premarital agreement" as "an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage." Section 2 requires that a premarital agreement be in writing and signed by both parties. Section 4 provides that a premarital agreement becomes effective upon the marriage of the parties. These sections establish significant parameters. That is, the Act does not deal with agreements between persons who live together but who do not contemplate marriage or who do not marry. Nor does the Act provide for postnuptial or separation agreements or with oral agreements. On the other hand, agreements which are embraced by the act are permitted to deal with a wide variety of matters and Section 3 provides an illustrative list of those matters, including spousal support, which may properly be dealt with in a premarital agreement.

Section 6 is the key operative section of the Act and sets forth the conditions under which a premarital agreement is not enforceable. An agreement is not enforceable if the party against whom enforcement is sought proves that (a) he or she did not execute the agreement voluntarily or that (b) the agreement was unconscionable when it was executed and, before execution of the agreement, he or she (1) was not provided a fair and reasonable disclosure of the property or financial obligations of the other party, (2) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided, and (3) did not have, or reasonably could not have had, an adequate knowledge of the property and financial obligations of the other party.

Even if these conditions are not proven, if a provision of a premarital agreement modifies or eliminates spousal support, and that modification or elimination would cause a party to be eligible for support under a program of public assistance at the time of separation, marital dissolution, or death, a court is authorized to order the other party to provide support to the extent necessary to avoid that eligibility. These sections form the heart of the Act; the remaining sections deal with more tangential issues. Section 5 prescribes the manner in which a premarital agreement may be amended or revoked; Section 7 provides for very limited enforcement where a marriage is subsequently determined to be void; and Section 8 tolls any statute of limitations applicable to an action asserting a claim for relief under a premarital agreement during the parties' marriage.

​​

​​SECTION 1. DEFINITIONS.

As used in this Act:

(1) "Premarital agreement" means an agreement between prospective spouses

made in contemplation of marriage and to be effective upon marriage.

(2) "Property" means an interest, present or future, legal or equitable, vested

or contingent, in real or personal property, including income and earnings.

COMMENT

The definition of "premarital agreement" set forth in subsection (1) is limited

to an agreement between prospective spouses made in contemplation of and to be effective

upon marriage. Agreements between persons living together but not contemplating

marriage (see Marvin v. Marvin, 18 Cal. 3d 660 (1976), judgment after trial modified, 122

Cal. App. 3d 871 (1981)) and postnuptial or separation agreements are outside the scope

of this Act. Formal requirements are prescribed by Section 2. An illustrative list of matters

which may be included in an agreement is set forth in Section 3.

Subsection (2) is designed to embrace all forms of property and interests

therein. These may include rights in a professional license or practice, employee benefit

plans, pension and retirement accounts, and so on. The reference to income or earnings

includes both income from property and earnings from personal services.

SECTION 2. FORMALITIES.

A premarital agreement must be in writing and signed by both parties. It is enforceable

without consideration.

COMMENT

This section restates the common requirement that a premarital agreement be

reduced to writing and signed by both parties (see Ariz. Rev. Stats. § 25-201; Ark. Stats.

§ 55-310; Cal. Civ. C. § 5134; 13 Dela. Code 1974 § 301; Idaho Code § 32-917; Ann.

Laws Mass. ch. 209, § 25; Minn. Stats. Ann. § 519.11; Montana Rev. C.

§ 36-123; New Mex Stats. Ann. 1978 40-2-4; Ore. Rev. Stats. § 108.140; Vernon's Texas

Codes Ann. § 5.44; Vermont Stats. Ann. Title 12, § 181). Many states also require other

formalities, including notarization or an acknowledgement (see, e.g., Arizona, Arkansas,

California, Idaho, Montana, New Mexico) but may then permit the formal statutory

requirement to be avoided or satisfied subsequent to execution (see In re Marriage of

Cleveland, 76 Cal. App. 3d 357 (1977) (premarital agreement never acknowledged but

"proved" by sworn testimony of parties in dissolution proceeding)). This act dispenses with

all formal requirements except a writing signed by both parties. Although the section is

framed in the singular, the agreement may consist of one or more documents intended to

be part of the agreement and executed as required by this section.

Section 2 also restates what appears to be the almost universal rule regarding

the marriage as consideration for a premarital agreement (see, e.g., Ga. Code § 20-303;

Barnhill v. Barnhill, 386 So. 2d 749 (Ala. Civ. App. 1980); Estate of Gillilan v. Estate of

Gillilan, 406 N.E. 2d 981 (Ind. App. 1980); Friedlander v. Friedlander, 494 P.2d 208

(Wash. 1972); but cf. Wilson v. Wilson, 170 A. 2d 679, 685 (Me. 1961)). The primary

importance of this rule has been to provide a degree of mutuality of benefits to support the

enforceability of a premarital agreement. A marriage is a prerequisite for the effectiveness

of a premarital agreement under this act (see Section 4). This requires that there be a

ceremonial marriage. Even if this marriage is subsequently determined to have been void,

Section 7 may provide limits of enforceability of an agreement entered into in

contemplation of that marriage. Consideration as such is not required and the standards for

enforceability are established by Sections 6 and 7. Nevertheless, this provision is retained

here as a desirable, if not essential, restatement of the law. On the other hand, the fact that

marriage is deemed to be consideration for the purpose of this act does not change the rules

applicable in other areas of law (see, e.g., 26 U.S.C.A. § 2043 (release of certain marital

rights not treated as consideration for federal estate tax), 2512; Merrill v. Fahs, 324 U.S.

308, rehearing denied 324 U.S. 888 (release of marital rights in premarital agreement not

adequate and full consideration for purposes of federal gift tax).

Finally, a premarital agreement is a contract. As required for any other

contract, the parties must have the capacity to contract in order to enter into a binding

agreement. Those persons who lack the capacity to contract but who under other provisions

of law are permitted to enter into a binding agreement may enter into a premarital

agreement under those other provisions of law.

SECTION 3. CONTENT.

(a) Parties to a premarital agreement may contract with respect to:

(1) the rights and obligations of each of the parties in any of the property

of either or both of them whenever and wherever acquired or located;

(2) the right to buy, sell, use, transfer, exchange, abandon, lease,

consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or

otherwise manage and control property;

(3) the disposition of property upon separation, marital dissolution,

death, or the occurrence or nonoccurrence of any other event;

(4) the modification or elimination of spousal support;

(5) the making of a will, trust, or other arrangement to carry out the

provisions of the agreement;

(6) the ownership rights in and disposition of the death benefit from a

life insurance policy;

(7) the choice of law governing the construction of the agreement; and

(8) any other matter, including their personal rights and obligations, not

in violation of public policy or a statute imposing a criminal penalty.

(b) The right of a child to support may not be adversely affected by a

premarital agreement.

COMMENT

Section 3 permits the parties to contract in a premarital agreement with respect

to any matter listed and any other matter not in violation of public policy or any statute

imposing a criminal penalty. The matters are intended to be illustrative, not exclusive.

Paragraph (4) of subsection (a) specifically authorizes the parties to deal with spousal

support obligations. There is a split in authority among the states as to whether an

premarital agreement may control the issue of spousal support. Some few states do not

permit a premarital agreement to control this issue (see, e.g., In re Marriage of Winegard,

278 N.W. 2d 505 (Iowa 1979); Fricke v. Fricke, 42 N.W. 2d 500 (Wis. 1950)). However,

the better view and growing trend is to permit a premarital agreement to govern this matter

if the agreement and the circumstances of its execution satisfy certain standards (see, e.g.,

Newman v. Newman, 653 P.2d 728 (Colo. Sup. Ct. 1982); Parniawski v. Parniawski, 359

A.2d 719 (Conn. 1976); Volid v. Volid, 286 N.E. 2d 42 (Ill. 1972); Osborne v. Osborne,

428 N.E. 2d 810 (Mass. 1981); Hudson v. Hudson, 350 P.2d 596 (Okla. 1960); Unander

v. Unander, 506 P.2d 719 (Ore. 1973)) (see Sections 7 and 8).

Paragraph (8) of subsection (a) makes clear that the parties may also contract

with respect to other matters, including personal rights and obligations, not in violation of

public policy or a criminal statute. Hence, subject to this limitation, an agreement may public

policy or a criminal statute. Hence, subject to this limitation, an agreement may

provide for such matters as the choice of abode, the freedom to pursue career opportunities,

the upbringing of children, and so on. However, subsection (b) of this section makes clear

that an agreement may not adversely affect what would otherwise be the obligation of a

party to a child.

SECTION 4. EFFECT OF MARRIAGE.

A premarital agreement becomes effective upon marriage.

COMMENT

This section establishes a marriage as a prerequisite for the effectiveness of a

premarital agreement. As a consequence, the act does not provide for a situation where

persons live together without marrying. In that situation, the parties must look to the other

law of the jurisdiction (see Marvin v. Marvin, 18 Cal. 3d 660 (1976); judgment after trial

modified, 122 Cal. App. 3d 871 (1981)).

SECTION 5. AMENDMENT, REVOCATION.

After marriage, a premarital agreement may be amended or revoked only by a written

agreement signed by the parties. The amended agreement or the revocation is enforceable

without consideration.

COMMENT

This section requires the same formalities of execution for an amendment or

revocation of a premarital agreement as are required for its original execution (cf. Estate

of Gillilan v. Estate of Gillilan, 406 N.E. 2d 981 (Ind. App. 1980) (agreement may be

altered by subsequent agreement but not simply by inconsistent acts).

SECTION 6. ENFORCEMENT.

(a) A premarital agreement is not enforceable if the party against whom

enforcement is sought proves that:

(1) that party did not execute the agreement voluntarily; or

(2) the agreement was unconscionable when it was executed and, before

execution of the agreement, that party:

(i) was not provided a fair and reasonable disclosure of the

property or financial obligations of the other party;

(ii) did not voluntarily and expressly waive, in writing, any right

to disclosure of the property or financial obligations of the other party beyond the

disclosure provided; and

(iii) did not have, or reasonably could not have had, an adequate

knowledge of the property or financial obligations of the other party.

(b) If a provision of a premarital agreement modifies or eliminates spousal

support and that modification or elimination causes one party to the agreement to be

eligible for support under a program of public assistance at the time of separation or marital

dissolution, a court, notwithstanding the terms of the agreement, may require the other party

to provide support to the extent necessary to avoid that eligibility.

(c) An issue of unconscionability of a premarital agreement shall be decided

by the court as a matter of law.

COMMENT

This section sets forth the conditions which must be proven to avoid the

enforcement of a premarital agreement. If prospective spouses enter into a premarital

agreement and their subsequent marriage is determined to be void, the enforceability of the

agreement is governed by Section 7.

The conditions stated under subsection (a) are comparable to concepts which

are expressed in the statutory and decisional law of many jurisdictions. Enforcement based

on disclosure and voluntary execution is perhaps most common (see, e.g., Ark. Stats. § 55-

309; Minn. Stats. Ann. § 519.11; In re Kaufmann's Estate, 171 A. 2d 48 (Pa. 1961)

(alternate holding)). However, knowledge or reason to know, together with voluntary

execution, may also be sufficient (see, e.g., Tenn. Code Ann. § 36-606; Barnhill v. Barnhill,

386 So. 2d 749 (Ala. Civ. App. 1980); Del Vecchio v. Del Vecchio, 143 So. 2d 17 (Fla.

1962); Coward and Coward, 582 P. 2d 834 (Or. App. 1978); but see Matter of Estate of

Lebsock, 618 P.2d 683 (Colo. App. 1980)) and so may a voluntary, knowing waiver (see

Hafner v. Hafner, 295 N.W. 2d 567 (Minn. 1980)). In each of these situations, it should

be underscored that execution must have been voluntary (see Lutgert v. Lutgert, 338 So. 2d

1111 (Fla. 1976); see also 13 Dela. Code 1974 § 301 (10 day waiting period)). Finally,

a premarital agreement is enforceable if enforcement would not have been unconscionable

at the time the agreement was executed (cf. Hartz v. Hartz, 234 A.2d 865 (Md. 1967)

(premarital agreement upheld if no disclosure but agreement was fair and equitable under

the circumstances)).

The test of "unconscionability" is drawn from Section 306 of the Uniform

Marriage and Divorce Act (UMDA) (see Ferry v. Ferry, 586 S.W. 2d 782 (Mo. 1979); see

also Newman v. Newman, 653 P.2d 728 (Colo. Sup. Ct. 1982) (maintenance provisions of

premarital agreement tested for unconscionability at time of marriage termination)). The

following discussion set forth in the Commissioner's Note to Section 306 of the UMDA is

equally appropriate here:

"Subsection (b) undergirds the freedom allowed the parties by making clear that

the terms of the agreement respecting maintenance and property disposition are binding

upon the court unless those terms are found to be unconscionable. The standard of

unconscionability is used in commercial law, where its meaning includes protection against

onesidedness, oppression, or unfair surprise (see section 2-302, Uniform Commercial

Code), and in contract law, Scott v. U.S., 12 Wall (U.S.) 443 (1870) ('contract . . .

unreasonable and unconscionable but not void for fraud'); Stiefler v. McCullough, 174 N.E.

823, 97 Ind.App. 123 (1931); Terre Haute Cooperage v. Branscome, 35 So.2d 537, 203

Miss. 493 (1948); Carter v. Boone County Trust Co., 92 S.W. 2d 647, 338 Mo. 629 (1936).

It has been used in cases respecting divorce settlements or awards. Bell v. Bell, 371 P.2d

773, 150 Colo. 174 (1962) ('this division of property is manifestly unfair, inequitable and

unconscionable'). Hence the act does not introduce a novel standard unknown to the law.

In the context of negotiations between spouses as to the financial incidents of their

marriage, the standard includes protection against overreaching, concealment of assets, and

sharp dealing not consistent with the obligations of marital partners to deal fairly with each

other.

"In order to determine whether the agreement is unconscionable, the court may

look to the economic circumstances of the parties resulting from the agreement, and any

other relevant evidence such as the conditions under which the agreement was made,

including the knowledge of the other party. If the court finds the agreement not

unconscionable, its terms respecting property division and maintenance may not be altered

by the court at the hearing." (Commissioner's Note, Sec. 306, Uniform Marriage and

Divorce Act.)

Nothing in Section 6 makes the absence of assistance of independent legal

counsel a condition for the unenforceability of a premarital agreement. However, lack of

that assistance may well be a factor in determining whether the conditions stated in Section

6 may have existed (see, e.g., Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla. 1962)).

Even if the conditions stated in subsection (a) are not proven, if a provision of

a premarital agreement modifies or eliminates spousal support, subsection (b) authorizes

a court to provide very limited relief to a party who would otherwise be eligible for public

welfare (see, e.g., Osborne v. Osborne, 428 N.E. 2d 810 (Mass. 1981) (dictum); Unander

v. Unander, 506 P.2d 719 (Ore. 1973) (dictum)).

No special provision is made for enforcement of provisions of a premarital

agreement relating to personal rights and obligations. However, a premarital agreement is

a contract and these provisions may be enforced to the extent that they are enforceable are

under otherwise applicable law (see Avitzur v. Avitzur, 459 N.Y.S. 2d 572 (Ct. App.).

Section 6 is framed in a manner to require the party who alleges that a

premarital agreement is not enforceable to bear the burden of proof as to that allegation.

The statutory law conflicts on the issue of where the burden of proof lies (contrast Ark.

Stats.

§ 55-313; 31 Minn. Stats. Ann. § 519.11 with Vernon's Texas Codes Ann. § 5.45).

Similarly, some courts have placed the burden on the attacking spouse to prove the

invalidity of the agreement. Linker v. Linker, 470 P.2d 921 (Colo. 1970); Matter of Estate

of Benker, 296 N.W. 2d 167 (Mich. App. 1980); In re Kauffmann's Estate, 171 A.2d 48

(Pa. 1961). Some have placed the burden upon those relying upon the agreement to prove

its validity. Hartz v. Hartz, 234 A.2d 865 (Md. 1967). Finally, several have adopted a

middle ground by stating that a premarital agreeement is presumptively valid but if a

disproportionate disposition is made for the wife, the husband bears the burden of proof of

showing adequate disclosure. (Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla. 1962);

Christians v. Christians, 44 N.W.2d 431 (Iowa 1950); In re Neis' Estate, 225 P.2d 110

(Kans. 1950); Truitt v. Truitt's Adm'r, 162 S.W. 2d 31 (Ky. 1942); In re Estate of

Strickland, 149 N.W. 2d 344 (Neb. 1967); Kosik v. George, 452 P.2d 560 (Or. 1969);

Friedlander v. Friedlander, 494 P.2d 208 (Wash. 1972).

SECTION 7. ENFORCEMENT: VOID MARRIAGE.

If a marriage is determined to be void, an agreement that would otherwise have been

a premarital agreement is enforceable only to the extent necessary to avoid an inequitable

result.

COMMENT

Under this section a void marriage does not completely invalidate an premarital

agreement but does substantially limit its enforceability. Where parties have married and

lived together for a substantial period of time and one or both have relied on the existence

of a premarital agreement, the failure to enforce the agreement may well be inequitable.

This section, accordingly, provides the court discretion to enforce the agreement to the

extent necessary to avoid the inequitable result (see Annot., 46 A.L.R. 3d 1403).

SECTION 8. LIMITATION OF ACTIONS.

Any statute of limitations applicable to an action asserting a claim for relief under a

premarital agreement is tolled during the marriage of the parties to the agreement.

However, equitable defenses limiting the time for enforcement, including laches and

estoppel, are available to either party.

COMMENT

In order to avoid the potentially disruptive effect of compelling litigation

between the spouses in order to escape the running of an applicable statute of limitations,

Section 8 tolls any applicable statute during the marriage of the parties (contrast Dykema

v. Dykema, 412 N.E. 2d 13 (Ill. App. 1980) (statute of limitations not tolled where fraud

not adequately pleaded, hence premarital agreement enforced at death)). However, a party

is not completely free to sit on his or her rights because the section does preserve certain

equitable defenses.

SECTION 9. APPLICATION AND CONSTRUCTION.

This [Act] shall be applied and construed to effectuate its general purpose to make

uniform the law with respect to the subject of this [Act] among states enacting it.

COMMENT

Section 9 is a standard provision in all Uniform Acts.

SECTION 10. SHORT TITLE.

This [Act] may be cited as the Uniform Premarital Agreement Act.

COMMENT

This is the customary "short title" clause, which may be placed in that order in

the bill for enactment as the legislative practice of the state prescribes.

SECTION 11. SEVERABILITY.

If any provision of this [Act] or its application to any person or circumstance is held

invalid, the invalidity does not affect other provisions or applications of this [Act]

which can be given effect without the invalid provision or application, and to this end the

provisions of this [Act] are severable.

COMMENT

Section 11 is a standard provision included in certain Uniform Acts.

SECTION 12. TIME OF TAKING EFFECT.

This [Act] takes effect ________________________ and applies to any premarital

agreement executed on or after that date.

SECTION 13. REPEAL.

The following acts and parts of acts are repealed:

(a)

(b)

(c)

 
 

UNIFORM PREMARITAL AND MARITAL AGREEMENTS ACT

Drafted by the

NATIONAL CONFERENCE OF COMMISSIONERS

 ON UNIFORM STATE LAWS

and by it

APPROVED AND RECOMMENDED FOR ENACTMENT

IN ALL THE STATES

at its

ANNUAL CONFERENCE

MEETING IN ITS ONE-HUNDRED-AND-TWENTY-FIRST YEAR

NASHVILLE, TENNESSEE

JULY 13 - JULY 19, 2012

WITHOUT PREFATORY NOTE AND COMMENTS

 

COPYRIGHT 8 2012

By

NATIONAL CONFERENCE OF COMMISSIONERS

ON UNIFORM STATE LAWS

October 1, 2012

UNIFORM PREMARITAL AND MARITAL AGREEMENTS ACT

 

SECTION 1.  SHORT TITLE.  This [act] may be cited as the Uniform Premarital and Marital Agreements Act.

SECTION 2.  DEFINITIONS.  In this [act]:

(1) “Amendment” means a modification or revocation of a premarital agreement or marital agreement.

(2) “Marital agreement” means an agreement between spouses who intend to remain married which affirms, modifies, or waives a marital right or obligation during the marriage or at separation, marital dissolution, death of one of the spouses, or the occurrence or nonoccurrence of any other event. The term includes an amendment, signed after the spouses marry, of a premarital agreement or marital agreement.

(3) “Marital dissolution” means the ending of a marriage by court decree. The term includes a divorce, dissolution, and annulment.

(4) “Marital right or obligation” means any of the following rights or obligations arising between spouses because of their marital status:

(A) spousal support;

(B) a right to property, including characterization, management, and ownership;

(C) responsibility for a liability;

(D) a right to property and responsibility for liabilities at separation, marital dissolution, or death of a spouse; or

(E) award and allocation of attorney’s fees and costs.

(5) “Premarital agreement” means an agreement between individuals who intend to marry which affirms, modifies, or waives a marital right or obligation during the marriage or at separation, marital dissolution, death of one of the spouses, or the occurrence or nonoccurrence of any other event.  The term includes an amendment, signed before the individuals marry, of a premarital agreement.

(6) “Property” means anything that may be the subject of ownership, whether real or personal, tangible or intangible, legal or equitable, or any interest therein.

(7) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

(8) “Sign” means with present intent to authenticate or adopt a record:

(A) to execute or adopt a tangible symbol; or

(B) to attach to or logically associate with the record an electronic symbol, sound, or process.

(9)  “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. 

Legislative Note: If your state recognizes nonmarital relationships, such as civil unions and domestic partnerships, consider whether these definitions need to be amended.

SECTION 3.  SCOPE. 

(a) This [act] applies to a premarital agreement or marital agreement signed on or after [the effective date of this [act]].

(b) This [act] does not affect any right, obligation, or liability arising under a premarital agreement or marital agreement signed before [the effective date of this [act]].

(c)  This [act] does not apply to:

(1) an agreement between spouses which affirms, modifies, or waives a marital right or obligation and requires court approval to become effective; or

(2) an agreement between spouses who intend to obtain a marital dissolution or court-decreed separation which resolves their marital rights or obligations and is signed when a proceeding for marital dissolution or court-decreed separation is anticipated or pending.

(d)  This [act] does not affect adversely the rights of a bona fide purchaser for value to the extent that this [act] applies to a waiver of a marital right or obligation in a transfer or conveyance of property by a spouse to a third party.

SECTION 4.  GOVERNING LAW. 

The validity, enforceability, interpretation, and construction of a premarital agreement or marital agreement are determined:

(1) by the law of the jurisdiction designated in the agreement if the jurisdiction has a significant relationship to the agreement or either party and the designated law is not contrary to a fundamental public policy of this state; or

(2)  absent an effective designation described in paragraph (1), by the law of this state, including the choice-of-law rules of this state.

SECTION 5.  PRINCIPLES OF LAW AND EQUITY.   

Unless displaced by a provision of this [act], principles of law and equity supplement this [act].

SECTION 6.  FORMATION REQUIREMENTS. 

A premarital agreement or marital agreement must be in a record and signed by both parties. The agreement is enforceable without consideration.

SECTION 7.  WHEN AGREEMENT EFFECTIVE. 

A premarital agreement is effective on marriage. A marital agreement is effective on signing by both parties.

SECTION 8.  VOID MARRIAGE. 

If a marriage is determined to be void, a premarital agreement or marital agreement is enforceable to the extent necessary to avoid an inequitable result.

SECTION 9. ENFORCEMENT.

(a) A premarital agreement or marital agreement is unenforceable if a party against whom enforcement is sought proves:

(1) the party’s consent to the agreement was involuntary or the result of duress;               

(2) the party did not have access to independent legal representation under subsection (b);

(3) unless the party had independent legal representation at the time the agreement was signed, the agreement did not include a notice of waiver of rights under subsection (c) or an  explanation in plain language of the marital rights or obligations being modified or waived by the agreement; or

(4) before signing the agreement, the party did not receive adequate financial disclosure under subsection (d).

(b) A party has access to independent legal representation if:

(1) before signing a premarital or marital agreement, the party has a reasonable time to:

(A) decide whether to retain a lawyer to provide independent legal representation; and

(B) locate a lawyer to provide independent legal representation, obtain the lawyer’s advice, and consider the advice provided; and

(2) the other party is represented by a lawyer and the party has the financial ability to retain a lawyer or the other party agrees to pay the reasonable fees and expenses of independent legal representation.

(c) A notice of waiver of rights under this section requires language, conspicuously displayed, substantially similar to the following, as applicable to the premarital agreement or marital agreement:

“If you sign this agreement, you may be:

Giving up your right to be supported by the person you are marrying or to whom you are married.

Giving up your right to ownership or control of money and property.

Agreeing to pay bills and debts of the person you are marrying or to whom you are married.

Giving up your right to money and property if your marriage ends or the person to whom you are married dies.

Giving up your right to have your legal fees paid.”

(d) A party has adequate financial disclosure under this section if the party:

(1) receives a reasonably accurate description and good-faith estimate of value of the property, liabilities, and income of the other party;

(2) expressly waives, in a separate signed record, the right to financial disclosure beyond the disclosure provided; or

(3) has adequate knowledge or a reasonable basis for having adequate knowledge of the information described in paragraph (1).

(e) If a premarital agreement or marital agreement modifies or eliminates spousal support and the modification or elimination causes a party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, on request of that party, may require the other party to provide support to the extent necessary to avoid that eligibility.

(f) A court may refuse to enforce a term of a premarital agreement or marital agreement if, in the context of the agreement taken as a whole[:]

[(1)] the term was unconscionable at the time of signing[; or

(2) enforcement of the term would result in substantial hardship for a party because of a material change in circumstances arising after the agreement was signed]. 

(g)  The court shall decide a question of unconscionability [or substantial hardship] under subsection (f) as a matter of law.

Legislative Note:  Section 9(a) places the burden of proof on the party challenging a premarital agreement or a marital agreement.  Amendments are required if your state wants to (1) differentiate between the two categories of agreements and place the burden of proof on a party seeking to enforce a marital agreement, or (2) place the burden of proof on a party seeking to enforce either a premarital agreement or marital agreement.  

If your state wants to permit review for “substantial hardship” caused by a premarital agreement or marital agreement at the time of enforcement, Section 9(f), including the bracketed language, should be enacted.

SECTION 10. UNENFORCEABLE TERMS.

(a) In this section, “custodial responsibility” means physical or legal custody, parenting time, access, visitation, or other custodial right or duty with respect to a child.

(b) A term in a premarital agreement or marital agreement is not enforceable to the extent that it:

(1) adversely affects a child’s right to support;

(2) limits or restricts a remedy available to a victim of domestic violence under law of this state other than this [act];

(3) purports to modify the grounds for a court-decreed separation or marital dissolution available under law of this state other than this [act]; or

(4) penalizes a party for initiating a legal proceeding leading to a court-decreed separation or marital dissolution.

(c) A term in a premarital agreement or marital agreement which defines the rights or duties of the parties regarding custodial responsibility is not binding on the court.    

Legislative Note:  A state may vary the terminology of “custodial responsibility” to reflect the terminology used in the law of this state other than this act.

SECTION 11.  LIMITATION OF ACTION

A statute of limitations applicable to an action asserting a claim for relief under a premarital agreement or marital agreement is tolled during the marriage of the parties to the agreement, but equitable defenses limiting the time for enforcement, including laches and estoppel, are available to either party.

SECTION 12.  UNIFORMITY OF APPLICATION AND CONSTRUCTION. 

In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it. 

SECTION 13.  RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT. 

This [act] modifies, limits, or supersedes the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001 et seq., but does not modify, limit, or supersede Section 101(c) of that act, 15 U.S.C. Section 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15 U.S.C. Section 7003(b).

[SECTION 14.  REPEALS; CONFORMING AMENDMENTS. 

(a) [Uniform Premarital Agreement Act]  is repealed.

(b) [Uniform Probate Code Section 2-213 (Waiver of Right to Elect and of Other Rights)] is repealed.

(c) [. . ..]

SECTION 15.  EFFECTIVE DATE.  This [act] takes effect ….

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