Premarital Agreements

A recurring issue that shows up on Family Law essays is premarital agreements. First to note is that these agreements are valid contracts, and the marriage itself is the consideration required for formation of the contract. 

The law to apply on the UBE is called the Uniform Premarital Agreement Act ("UPAA").  The UPAA provides that parties can enter into premarital agreements with respect to their rights and obligations in property. The agreement may also include directives as to disposition of property upon separation, divorce, or death. Modification or elimination of spousal support upon divorce or separation, choice of law governing construction of the agreement, and any other matter not in violation of public policy or a criminal statute will all be enforced if the premarital agreement is deemed valid. Child custody provisions in a premarital agreement, however, will never bind the parties. Such provisions violate public policy as they do not necessarily take into account the best interest of the child. 

Often tested is the enforcement of such agreements. For a premarital contract to be enforceable, most courts require that the agreement is entered into voluntarily and that the contract is in writing and signed by the party to be charged. In addition, both parties must make a full and fair disclosure of their financial worth and all economic provisions within the agreement must be both fair and reasonable. A premarital agreement will be unenforceable if a party did not enter into the agreement voluntarily or if the agreement was unconscionable when executed. Unconscionability will often be found if a party was not provided fair disclosure and did not have adequate knowledge of the other party's property or financial obligation when signing the agreement.

It's not required by the UPAA that both parties to the agreement are represented by independent counsel, but if both parties are represented by independent counsel, it is less likely that a court will refuse to enforce the contract based on unconscionability. In other words, if one party presents the agreement to the other party a week before the wedding, that alone will not necessarily invalidate the agreement, especially if there is time for each party to obtain independent counsel. Whether that wedding will still take place is beyond the scope of this post. 👀

In determining the choice of law to apply to premarital agreements, the following holds: first check to see if there is a choice of law provision within the premarital agreement. If there is, that choice will apply. If there is no choice of law provision, then enforceability of the agreement is governed by the law of the state in which the agreement was executed or the law of the state with the most significant relationship to the parties.