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Litigation Over Premarital Agreements Is On The Rise. Text of Uniform Premarital Agreement Act

LITIGATION OVER PREMARITAL AGREEMENTS

LITIGATION OVER PREMARITAL AGREEMENTS

AND

THE UNIFORM PREMARITAL AGREEMENT ACT

Litigation about premarital agreements is on the rise even though, as of October 1997, 18 states enforce the Uniform Premarital Agreements Act. The three most common areas of premarital agreement litigation are procedural fairness, substantive fairness, and breach or waiver of agreement by acts of the parties during the marriage. Procedural fairness deals with whether each party signed the agreement in a "voluntary and knowing" manner.

Issues include whether there was duress or coercion when the agreement was reached, the length of time parties knew each other before they talked about the agreement, the length of time before the wedding that the agreement was signed, whether invitations been sent before the agreement was signed -- showing possible duress, whether the parties had been living together, whether there was full disclosure, etc.

Depending on where you live, the agreement can fail if it is "unfair" or "unconscionable." In determining whether the agreement is fair, the Court generallly consider such factors as length of the marriage, the purpose of the agreement, the assets owned by each party, the obligations either party may have to other family members, and the age and health of each party. The courts may also look at what each spouse gets under the agreement as opposed to what each spouse would have received if there had been no agreement.

Some courts look only at whether the agreement is unconscionable; others consider if the document was fair when signed and at the time of divorce.

UNIFORM PREMARITAL AGREEMENT ACT

This act, in one form or another, has been enacted by a number of states. Check your state law.

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.

2. Formalities

A premarital agreement must be in writing and signed by both parties. It is enforceable without consideration.

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.

 

 

4. Effect of Marriage

A premarital agreement becomes effective upon marriage.

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.

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.

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.

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.

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.

10. Short Title

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

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.

12. Time of Taking Effect

This [Act] takes effect ____________ and applies to any premarital agreement executed on or after that date.

13. Repeal

The following acts and parts of acts are repealed:

(a)

(b)

(c)



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