Premarital Agreements (or Prenuptial Agreements) Flashcards
When are premarital agreements enforceable?
Premarital agreements are enforceable UNLESS procured by fraud, duress, or coercion.
What must an agreement be to be valid under the UPAA?
The agreement must be:
1. in writing; and
2. signed by both parties.
No consideration is required.
When is an agreement under the UPAA not enforceable?
When the agreement is:
1. involuntary (fraud, duress, coercion); OR
2. unconscionable when executed AND before execution the spouse was (1) not provided fair disclosure (of property/financial obligations), (2) did not waive disclosure in writing; or (3) did not have (or could have) knowledge of such information
What are the involuntary factors under the UPAA?
Courts will consider:
1. presence of independent legal counsel;
2. length of time between agreement and the wedding;
3. ability to understand the agreement; and
4. other reasons for proceeding with the marriage (i.e., pregnancy)
Is child custody and support permissible in a prenuptial agreement?
Yes, it is permissible. However, it is not binding on a court, and any provision that adversely affects a child’s right to support is unenforceable.
If an agreement is not in the child’s best interests, a court may order a parent to pay an amount reasonable or necessary for the child’s support.
Is spousal support permissible in a prenuptial agreement?
Under the UPAA, it is permitted, but is not enforceable if it makes the spouse eligible for public support (welfare).
In some states, spousal support in a prenuptial agreement is invalid as against public policy.
Can a prenuptial agreement eliminate marital duties and/or allocate financial responsibilities?
Yes, spouses may agree on any matter not in violation of public policy or criminal law.
NOT binding on third parties and agreements limiting spousal support during the marriage are generally void as against public policy.
