Uniform Premarital Agreement Act
by Jeremy D. Morley
At least 27 states are now parties to the Uniform Premarital Agreement Act, although there has been some variation in the statutory terms in some such states. These states are: Arizona, Arkansas, California, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Maine, Montana, Nebraska, Nevada, New Mexico, North Carolina, North Dakota, Oregon, Rhode Island, South Dakota, Texas, Utah, Virginia, and Wisconsin.
The Uniform Act provides that prenuptial agreements are valid if they are in writing unless the party against whom enforcement is sought establishes either of two extremely limited defenses that are specified in Section 6 of the Act.
The first such defense is that the party did not execute the agreement voluntarily.
The second defense requires proof:
(a) That the agreement was “unconscionable” at the time that it was executed, and
(b) That, 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.
Section 3 authorizes modification or elimination of child support.
Section 3 also provides that the parties may contract with respect to “the choice of law governing the construction of the agreement.”
California's version of the Uniform Act adds several critical elements. Cal. Fam. Code §1615.
It requires that the party against whom enforcement is sought must:
1. Have been represented by independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel;
2. Have had not less than seven calendar days between the time that party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed; and
3. If unrepresented by legal counsel, have been fully informed of the terms and basic effect of the agreement as well as the rights and obligations he or she was giving up by signing the agreement; have been proficient in the language in which the explanation of the party's rights was conducted and in which the agreement was written; must receive a written memorialization of the explanation of the rights and obligations relinquished prior to signing the agreement; and must, on or before the signing of the premarital agreement, execute a document declaring that he or she received the required information and indicating who provided that information.
Most but not all of the other states that have not adopted the Uniform Act have enacted their own legislation on prenuptial agreements. As to the execution requirements, most require simply that the agreement be in writing (e.g., Alabama, Maryland, Massachusetts, Michigan, Ohio, Texas) but other states require notarization (e.g., Louisiana) and Minnesota and Missouri requires notarization and the attestation of witnesses while New York requires acknowledgement in the manner required for a deed.
The Uniform Act provides that prenuptial agreements are valid if they are in writing unless the party against whom enforcement is sought establishes either of two extremely limited defenses that are specified in Section 6 of the Act.
The first such defense is that the party did not execute the agreement voluntarily.
The second defense requires proof:
(a) That the agreement was “unconscionable” at the time that it was executed, and
(b) That, 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.
Section 3 authorizes modification or elimination of child support.
Section 3 also provides that the parties may contract with respect to “the choice of law governing the construction of the agreement.”
California's version of the Uniform Act adds several critical elements. Cal. Fam. Code §1615.
It requires that the party against whom enforcement is sought must:
1. Have been represented by independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel;
2. Have had not less than seven calendar days between the time that party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed; and
3. If unrepresented by legal counsel, have been fully informed of the terms and basic effect of the agreement as well as the rights and obligations he or she was giving up by signing the agreement; have been proficient in the language in which the explanation of the party's rights was conducted and in which the agreement was written; must receive a written memorialization of the explanation of the rights and obligations relinquished prior to signing the agreement; and must, on or before the signing of the premarital agreement, execute a document declaring that he or she received the required information and indicating who provided that information.
Most but not all of the other states that have not adopted the Uniform Act have enacted their own legislation on prenuptial agreements. As to the execution requirements, most require simply that the agreement be in writing (e.g., Alabama, Maryland, Massachusetts, Michigan, Ohio, Texas) but other states require notarization (e.g., Louisiana) and Minnesota and Missouri requires notarization and the attestation of witnesses while New York requires acknowledgement in the manner required for a deed.
