A premarital agreement, also known as a prenuptial or ante-nuptial agreement, is an agreement made between the parties in anticipation of their marriage. Such agreements can cover issues such as property division upon divorce, as well as child custody, child support, and alimony. Although premarital agreements have been increasingly embraced for their ability to resolve complex property and support issues without resort to trial, the lack of uniform language included in such agreements has been noted as potentially problematic.
In response to the concern over lack of uniformity, the Uniform Premarital Agreement Act (UPAA) has been adopted by the following states: Arizona, Arkansas, California, Connecticut, Delaware, 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, and Wisconsin, as well as the District of Columbia.
Under the Act, a premarital agreement is defined as an agreement in writing between prospective spouses, both of whom are required to sign the agreement, which is made in contemplation of marriage and is to be effective upon marriage. The Act also provides guidelines for the treatment of several key items in premarital agreements, including property, life insurance, wills, and spousal support (alimony), as well as guidelines addressing the circumstances under which a premarital agreement can be amended or revoked.
Additionally, the UPAA sets forth the circumstances under which a premarital agreement will be unenforceable, including when a party to the agreement did not execute it voluntarily or when the agreement is deemed unconscionable when executed. With respect to unconscionability, the Act describes several instances in which premarital agreements may not be enforceable on that ground, including: (1) that a party to the agreement was not provided a fair and reasonable disclosure of the property or financial obligations of the other party, (2) that a party to the agreement 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) that a party to the agreement did not have, or reasonably could not have had, an adequate knowledge of the other party’s property and financial obligations.
As it becomes more common for persons contemplating marriage to use premarital agreements to resolve certain issues prior to marriage, the provisions of the Uniform Premarital Agreement Act provides a means to achieve uniformity and certainty in the language contained in such agreements, while still retaining flexibility to address each couple’s unique needs.