Amendment to Prenuptial or Premarital Agreement
Some areas of law have been compiled by experts into Uniform Acts
which are often adopted in part or in whole by various states. Premarital Agreements
is one such area of law. The NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM
STATE LAWS adopted the final version of the Uniform Premarital Agreement
Act in 1983. Since that date, the act, as modified by the various
states, has been adopted in the following states: Arizona, Arkansas, California,
Connecticut, Delaware, District of Columbia, 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 and Virginia. At the heart of the act is the provision which
provides that such an agreement is generally valid if in writing and sets
forth the factors to consider if the agreement is challenged. If your state has not adopted the Uniform Act, case law generally controls enforceability of the agreement.
A sample of the Uniform
Act provides as follows:
25-201. Definitions
In this article, unless the context otherwise requires:
1. "Premarital agreement" means an agreement between prospective
spouses that is made in contemplation of marriage and that is effective
on marriage.
2. "Property" means an interest, present or future, legal or equitable,
vested or contingent, in real or personal property, including income and
earnings.
25-202. Enforcement
of premarital agreements; exception
A. A premarital agreement must be in writing and signed by both
parties. The agreement is enforceable without consideration.
B. The agreement becomes effective on marriage of the parties.
C. The agreement is not enforceable if the person against whom enforcement
is sought proves either of the following:
1. The person did not execute the agreement voluntarily.
2. The agreement was unconscionable when it was executed and before
execution of the agreement that person:
(a) Was not provided a fair and reasonable disclosure of the property
or financial obligations of the other party.
(b) 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.
(c) Did not have, or reasonably could not have had, an adequate
knowledge of the property or financial obligations of the other party.
D. 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.
E. An issue of unconscionability of a premarital agreement shall
be decided by the court as a matter of law.
F. 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.
25-203. Scope
of agreement
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 or create a security interest in, mortgage, encumber,
dispose of or otherwise manage and control property.
3. The disposition of property on 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.
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.
25-204. Amendment
or revocation of agreement
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.
25-205. Limitation
of actions
A 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.
If your state has not adopted the Uniform Act, case law generally
controls enforceability of the agreement. The agreement you have
found is written to comply with the Uniform Act adopted by your State,
or applicable case law if the Uniform Act has not been adopted by your
state.
Advantages of premarital agreements for both parties:
Avoiding Litigation Costs:
Protecting against Fears of Family Members
Protecting Family Assets
Protecting Business Assets
Protection Against Creditors
Child Custody and Support Guidlines
Predetermined Disposition of Property
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Disclaimer: This law summary is not legal advice.
If you are not an attorney, you should consult an attorney about serious
legal matters.
