D R A F T
FOR DISCUSSION ONLY
PREMARITAL AND MARITAL AGREEMENTS ACT
_____________________________________________________
NATIONAL
CONFERENCE OF COMMISSIONERS
ON
UNIFORM STATE LAWS
_____________________________________________________
For
March 25 – 26, 2011 Committee Meeting
With Prefatory Note and with
Comments
Copyright
© 2010
By
NATIONAL
CONFERENCE OF COMMISSIONERS
ON
UNIFORM STATE LAWS
____________________________________________________________________________________________
The ideas and conclusions set forth
in this draft, including the proposed statutory language and any comments or
reporter’s notes, have not been passed upon by the National Conference of
Commissioners on Uniform State Laws or the Drafting Committee. They do not necessarily reflect the views of
the Conference and its Commissioners and the Drafting Committee and its Members
and Reporter. Proposed statutory
language may not be used to ascertain the intent or meaning of any promulgated
final statutory proposal.
March 7, 2011
DRAFTING COMMITTEE ON
PREMARITAL AND MARITAL AGREEMENTS
The Committee appointed by and
representing the National Conference of Commissioners on Uniform State Laws in
drafting this Act consists of the following individuals:
BARBARA A. ATWOOD, University of Arizona,
James E. Rogers College of Law, 1201 E. Speedway,
P.O. Box 210176, Tucson, AZ 85721-0176, Chair
TURNEY P. BERRY, 2700 PNC
Plaza, Louisville, KY 40202
STANLEY C. KENT, 90 S. Cascade
Ave., Suite 1210, Colorado Springs, CO 80903
KAY P. KINDRED, University of
Nevada, Las Vegas, William S. Boyd School of Law, 4505 S. Maryland Pkwy., Box 451003, Las
Vegas, NV 89154-1003
SHELDON F. KURTZ, University of
Iowa College of Law, 446 BLB, Iowa City, IA, 52242
ROBERT H. SITKOFF, Harvard Law
School, 1575 Massachusetts Ave., Cambridge, MA 02138
HARRY L. TINDALL, 1300 Post Oak
Blvd., Suite 1550, Houston, TX 77056-3081
SUZANNE B. WALSH, P.O. Box
271820, West Hartford, CT 06127
STEPHANIE J. WILLBANKS, Vermont
Law School, 164 Chelsea St., P.O. Box 96, South Royalton, VT 05068
BRIAN H. BIX, University of
Minnesota Law School, Walter F. Mondale Hall, 229 19th Ave., S., Minneapolis, MN 55455-0400, Reporter
EX
OFFICIO
ROBERT A. STEIN, University of
Minnesota Law School, 229 19th Ave. S., Minneapolis, MN 55455, President
GAIL HAGERTY, South Central Judicial
District, P.O. Box 1013, 514 E. Thayer Ave., Bismark, ND 58502-1013, Division Chair
AMERICAN
BAR ASSOCIATION ADVISOR
CARLYN
S. MCCAFFREY, 767 Fifth Ave., New York, NY 10153, ABA Advisor
LINDA
J. RAVDIN, 7735 Old Georgetown Rd., Suite 1100, Bethesda, MD 20814-6183, ABA Advisor
EXECUTIVE
DIRECTOR
JOHN A. SEBERT, 111 N. Wabash Ave., Suite 1010,
Chicago, IL 60602, Executive Director
Copies of this Act may be obtained from:
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
111 N. Wabash Ave., Suite 1010
Chicago, Illinois
60602
312/450-6600
PREMARITAL AND MARITAL AGREEMENTS ACT
TABLE OF CONTENTS
ARTICLE 1.
GENERAL PROVISIONS.
SECTION 101. SHORT TITLE.................................................................................................... 3
SECTION 102. DEFINITIONS.................................................................................................... 3
SECTION 103. DEFAULT AND MANDATORY RULES........................................................ 5
SECTION 104. APPLICABILITY OF CONTRACT LAW........................................................ 6
SECTION 105. GOVERNING LAW........................................................................................... 6
ARTICLE 2.
PREMARITAL AGREEMENTS.
SECTION 201. FORMATION REQUIREMENTS..................................................................... 8
SECTION 202. EFFECT OF MARRIAGE.................................................................................. 8
SECTION 203. SCOPE OF AGREEMENT................................................................................. 8
SECTION 204. ENFORCEMENT.............................................................................................. 10
SECTION
205. ATTORNEY OBLIGATIONS RELATING TO
COERCIVE OR VIOLENT RELATIONSHIPS............................................................................................................................................ 13
ARTICLE 3.
MARITAL AGREEMENTS.
SECTION 301. FORMATION REQUIREMENTS................................................................... 14
SECTION 302. SCOPE OF AGREEMENT............................................................................... 14
SECTION 303. ENFORCEMENT.............................................................................................. 16
SECTION 304. ATTORNEY OBLIGATIONS RELATING TO COERCIVE OR
VIOLENT RELATIONSHIPS........................................................................................................................................... 18
PREMARITAL AND MARITAL
AGREEMENTS ACT
Prefatory Note
The purpose of this Act is to bring
clarity and consistency across a range of agreements between spouses and those
who are about to become spouses. The
focus is on agreements that purport to modify or waive rights that would
otherwise arise at the time of the dissolution of the marriage or the death of
one of the spouses.
The Uniform Premarital Agreement Act (UPAA) was promulgated in 1983. Since then it has been adopted by twenty-six jurisdictions, with a number of those jurisdictions making significant amendments to the UPAA, either at the time of enactment or at a later date. Subsequent commentators have offered a variety of criticisms of the UPAA. E.g., Barbara Ann Atwood, “Ten Years Later: Lingering Concerns About the Uniform Premarital Agreement Act,” 19 Journal of Legislation 127 (1993); Gail Frommer Brod, “Premarital Agreements and Gender Justice,” 9 Yale Journal of Law & Feminism 229 (1994); J. Thomas Oldham, “With All My Worldly Goods I Thee Endow, or Maybe Not: A Reevaluation of the Uniform Premarital Agreement Act After Three Decades,” University of Houston Public Law and Legal Theory Series 2011-A-1, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1753785.
Whatever its faults, the UPAA has brought some consistency to the legal treatment of premarital agreements, especially as concerns rights at dissolution of marriage, the situation regarding rights at death and the legal treatment of marital agreements have been far less settled and consistent. On rights at the death of the other spouse, the Uniform Probate Code, § 2-213, the Restatement (Third) of Property, § 9.4 (2003), The Model Marital Property Act, § 10 (1983); and The Tax Code, §§ 401 and 417 (stating when a surviving spouse’s waiver of rights to a qualified plan would be valid) all seem to impose somewhat different standards. Regarding marital agreements, some states have neither case-law nor legislation, while the remaining states have created a wide range of approaches.
The
general approach of this Act is that parties should be free, within broad
limits, to
choose the financial terms of their
marriage. The limits are those of due
process in formation, on the one hand, and certain minimal standards of support
at the point of enforcement, on the other.
Because a significant
minority of states authorizes some form of fairness review based on the
parties’ circumstances at the time the agreement is to be enforced, optional,
bracketed provisions (Section 204(b) for premarital agreements and Section 303(b)
for marital agreements) offer standards for evaluating unconscionability at the
time of enforcement.
This Act chooses to treat premarital
agreements and marital agreements generally under the same set of principles
and requirements. A number of states
currently treat premarital agreements and marital agreements under different
legal standards, with higher burdens on those who wish to enforce marital
agreements. See Sean Hannon Williams, “Postnuptial Agreements,” 2007 Wisconsin Law Review 827, 838-845; Brian
H. Bix, “The
This Act may be cited as the “Uniform Premarital and
Marital Agreements Act.”
(1) “Access to independent counsel” means that a party has adequate time and the financial ability to consult independent legal counsel before signing an agreement. The financial ability requirement can be met by an offer by the other party to pay for counsel.
(2) “Child custody and visitation” means the physical or legal custody of a child, visitation, access, parenting time, or other forms of custodial responsibility for a child.
(3) “Dissolution” means the ending of a marriage through either divorce or annulment.
(4) “Electronic record” means a record created, generated, sent, communicated, received or stored by electronic means, including, but not limited to, facsimiles, electronic mail, telexes, and internet messaging.
(5) “Electronic signature” means an electronic sound, symbol or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.
(6) “Fair and reasonable financial disclosure” means a reasonably accurate description of the nature and value of available assets and liabilities.
(7) “Separation” means a court-decreed separation of spouses that does not terminate the marriage.
(8) “Marital agreement” is an agreement between spouses whose primary intent is to alter or waive the legal rights and obligations that would otherwise arise between the spouses under applicable law at dissolution of the marriage or at the death of one of the spouses, and that has no other significant legal or economic purpose. The term does not include separation agreements or other agreements requiring court approval.
(9) “Premarital agreement” is an agreement between prospective spouses contemplating marriage that alters or waives the legal rights and obligations between the spouses that would otherwise arise at dissolution of the marriage or at the death of one of the spouses.
(10) “Property” means anything that may be the subject of ownership, whether real or personal, legal or equitable, or any interest therein.
(11) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(12) “Sign” means, with
present intent to authenticate or adopt a record:
(A) to
execute or adopt a tangible symbol; or
(B) to
attach to or logically associate with the record an electronic symbol, sound,
or process.
Legislative Note: The extent to which this Act applies to officially recognized non-marital relationships, such as civil unions and domestic partnerships, is a matter for state law.
Comment
The definitions of “electronic record” and “electronic signature” are taken from the Uniform Electronic Transaction Act.
The definition of “premarital agreement” is a slightly-modified version of the definition used in the American Law Institute’s Principles of the Law of the Dissolution of Marriage. The shorter definition of “premarital agreement” used by the UPAA (“an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage”) had the disadvantage of encompassing agreements that were entered by couples about to marry but which were not intended to affect the parties’ rights and obligations upon divorce or death, e.g. Islamic marriage contracts, with their deferred mahr payment provisions. See Nathan B. Oman, “Bargaining in the Shadow of God’s Law: Islamic Mahr Contracts and the Perils of Legal Specialization,” 45 Wake Forest Law Review 579 (2010); Brian H. Bix, “Mahr Agreements: Contracting in the Shadow of Family Law (and Religious Law) – A Comment on Oman,” Wake Forest Law Review Forum (forthcoming, 2011), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1752289.
The definition of “property” is taken from the Uniform Trust Code.
The definitions of “record” and “signatory” are taken from the 2002 version of the Uniform Parentage Act.
The definition of “sign” is taken from the 2010 version of the Uniform Collaborative Law Act.
SECTION 103. DEFAULT AND MANDATORY RULES. The terms of a premarital or marital agreement prevail over any provision of this Act, except:
(1) the applicability of this State’s common law doctrines relating to capacity to contract, estoppel, fraud, misrepresentation, duress, coercion, mistake, and other validating and invalidating cause;
(2) the requirement that the agreement be in a signed record under Sections 201 and 301;
(3) the non-binding effect of an agreement that defines the terms of child custody or visitation; adversely affects child support; prescribes fault-grounds for divorce; or regulates non-economic conduct during marriage under Sections 203(b) and 302(b);
(4) the obligation of a party seeking enforcement of an agreement to make a full and fair financial disclosure;
(5) the requirement that parties have access to independent counsel prior to signing a premarital or marital agreement under Sections 203 and 303;
(6) the standards for enforcing premarital agreements under Section 204 [and Section 206], and marital agreements under Section 303 [and Section 305]; and
(7) the obligations of
attorneys under Section 205 and Section 304.
Comment
This Section is adapted from the Uniform Trust Code, Section 105.
The first set of mandatory rules derives from the common law of contracts, and is also reflected in Section 104.
SECTION 104. APPLICABILITY OF CONTRACT LAW. The common law of contracts, including the law relative to capacity to contract, estoppel, fraud, misrepresentation, duress, coercion, mistake, and other validating and invalidating cause, supplement this [Act], except to the extent modified by this [Act] or another statute of this State.
Comment
This provision is adapted from Uniform Trust Code § 106, combined with language from Uniform Commercial Code § 1-103.
Where this Act does not expressly displace common law contract rules and principles, they apply. Thus, it is open to parties, e.g., to resist enforcement of premarital and marital agreements based on legal incompetency, misrepresentation, duress, undue influence, unconscionability, etc. For example, a premarital agreement presented to one of the parties for the first time hours before a marriage (where financial commitments have been made and guests have arrived from far away) clearly raises issues of duress, and might be voidable on that ground.
SECTION 105. GOVERNING LAW. The meaning and effect of the terms of premarital and marital agreements are determined by:
(1) the law of the jurisdiction designated in the terms, [if that jurisdiction has an appropriate relation to the transaction or either of the parties, and] unless the designation of that jurisdiction’s law is contrary to a strong public policy of the jurisdiction having the most significant relationship to the matter at issue; or
(2) in the absence of a controlling designation in the terms of the agreement, the law of the jurisdiction having the most significant relationship to the matter at issue.
Comment
This Section is taken from the Uniform Trusts Act, Section 107[, with some additional language taken from the Revised Article 1 of the Uniform Commercial Code, Section 1-301]. It is consistent with UPAA, Section 3(a)(7), but goes into greater detail. The Section reflects traditional Conflict of Laws and choice of law principles relating to the enforcement of contracts. See Restatement (Second) of Conflict of Laws §§ 186-188 (1971).
SECTION 201. FORMATION REQUIREMENTS. A premarital agreement must be in a record and signed by both parties. It is enforceable without consideration.
Comment
This Section is adapted from UPAA Section 2.
Almost all jurisdictions currently require premarital agreements to be in writing. A small number of jurisdictions have allowed oral premarital agreements to be enforced based on partial performance. E.g., In re Marriage of Benson, 7 Cal. Rptr. 3d 905 (App. 2003). This Act does not authorize enforcement of oral premarital agreements on that basis.
It is the consensus view of jurisdictions and commentators that premarital agreements are or should be enforceable without (additional) consideration. In any event, those states that have looked at the consideration issue for premarital agreements have concluded that the other party’s agreement to marry or the act of marrying constitutes valid legal consideration. However, most modern approaches to premarital agreements have by-passed the consideration requirement entirely: e.g., UPAA, Section 2; American Law Institute, Principles of the Law of Family Dissolution, Section 7.01, comment c (2002); Restatement (Third) of Property, Section 9.4 (2003).
SECTION 202. EFFECT OF MARRIAGE. A premarital agreement is effective upon marriage.
Comment
This Section is adapted from UPAA Section 4.
SECTION 203. SCOPE OF AGREEMENT.
(a) A premarital agreement
may include provisions relating 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 disposition of property upon separation, marital
dissolution, death, or the occurrence or nonoccurrence of any other event;
(3) the disposition of debt,
liability, or other obligation upon separation, marital dissolution, death, or the
occurrence or nonoccurrence of any other event;
(4)
the characterization of property during
the marriage as [community][marital] or separate;
(5)
the right to buy, sell, use, transfer, exchange, lease, expend, assign, create
a security interest in, mortgage, encumber, dispose of, or otherwise manage and
control property;
(6)
the rights of either or both spouses to interests in trusts, inheritances,
gifts, and other expectancies created by third parties;
(7)
the modification or elimination of spousal support, subject to Section 204(b);
(8) the making of a will, trust, or other transfer
effective at death;
(9) the ownership
rights in and disposition of the death benefit from a
life insurance policy;
(10)
the rights in property arising at or after the death of either party, including
but not limited to inheritance, dower, curtesy, elective share, homestead
allowance, exempt property, and family allowance;
(11)
the rights that either party might have under the provisions of other laws;
(12)
tax matters arising out of the marriage;
(13)
provisions for the resolution of disputes arising under the agreement,
including arbitration provisions;
(14) priority for
appointment of a fiduciary or guardian for an incapacitated individual or
personal representative of a decedent’s estate;
(15) choice of law
governing construction and validity of the agreement; and
(16) any other matter not in violation of public policy or a statute imposing a criminal penalty.
(b) A premarital agreement may not adversely affect a child’s right to support, or impose fault-grounds on parties for legal separation or dissolution.
(c) Terms of a premarital agreement that regulate non-economic conduct of the parties during marriage or that define rights and responsibilities of the parties regarding child custody and visitation are not binding on a court.
Comment
This
Section is adapted from UPAA, Section 3(a).
Under
Section (a)(11), provisions relating to rights either spouse might have under
other laws would include rights under health care legislation and rights of
fiduciaries to incapacitated parties.
Sub-Section
(b) reflects the consensus in the case-law, that courts will not enforce
premarital agreement provisions relating to topics beyond the parties’
financial obligations inter se. In particular, courts have concluded that the
parties cannot waive their children’s right to child support payments (though
some courts have held enforceable agreements that would increase such payments beyond the amount set by state law). Nothing in this provision is intended to
affect the rights of parties who enter valid covenant marriages in states that
make that alternative form of marriage available.
(a) A premarital agreement
is not enforceable if the party against whom
enforcement is sought proves
that:
(1) the party did not execute the agreement
voluntarily, without undue influence or duress;
(2) the agreement was
unconscionable when it was executed;
(3) before execution of the
agreement, the 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 a separate signed record, 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;
(4) the party did not
have meaningful access to independent counsel prior to signing the agreement;
or
(5) the party lacked general knowledge of the
rights being altered or waived, and the agreement did not expressly enumerate
those rights; or
[(5) the party was not represented by counsel and the agreement did not
state, in language easily understandable by an adult of ordinary intelligence
with no legal training, the nature of any rights or claims otherwise arising at
dissolution of marriage or at death that were altered by the agreement, and the
nature of that alteration.]
(b)
A waiver or modification of spousal support in a premarital agreement is not
enforceable to the extent that the waiver or modification would limit the
assets or income available to the party to an amount less than that allowed for
persons eligible for need-based medical or other forms of public assistance.
[(b) A court
may modify, or refuse to enforce, a premarital agreement, to the extent that
enforcement would result in undue hardship for a party such that enforcement
would be unconscionable. A determination
of unconscionability shall be based on the parties’ circumstances at the time
of enforcement, including, but not limited to, the following factors:
(1)
the length of marriage;
(2)
the loss of earning ability due to illness, disability, or care of the parties’
children or other family members;
(3)
the extent to which the agreement was motivated by an intention to protect the
interests of third parties, such as children of a prior marriage or other
family members; and
(4)
any history of domestic violence between the parties.]
(c)
A court may refuse to enforce a waiver or modification of spousal support as
appropriate where there is a history of domestic violence between the parties
or against children of the parties.
(d)
Unless the agreement expressly states otherwise,
terms in the agreement should be treated as severable, such that the
modification or non-enforcement of one provision will not require the
modification or non-enforcement of other provisions or the agreement as a
whole.
Comment
This Section is adapted from UPAA, Section 6.
[Sub-section
(a)(5) is adapted from the Restatement
(Third) of Property, Section 9.4(3) (2003).]
Sub-section
(b) as adapted from N.D. Cent. Code Section 30.1-05-07.
Disclosure will qualify as “fair and
reasonable” even if a value is approximate or difficult to determine, and even
if there are minor inaccuracies.
Waiver or
modification of claims relating to a spouse’s pension are subject to the
constraints of applicable state and federal law, including but not limited to
ERISA (Employee Retirement Income Security Act of 1974, 19 U.S.C. 1001 et seq.).
The language in
the bracketed subsection (b) is adapted from the American Law Institute’s Principles of the Law of Family Dissolution,
Section 7.05 (2002).]
(a) The lawyer representing a client
relating to the drafting, negotiation, and signing of a premarital agreement shall
reasonably assess whether the party the lawyer represents has a history of a coercive
or violent relationship with the other party or prospective party to the
agreement.
(b) If the lawyer reasonably
believes that the party the lawyer represents regarding a premarital agreement
or a party who consults the lawyer relating to such an agreement has a history
of a coercive or violent relationship with the other party or prospective party
to the agreement, the lawyer may not begin or continue representation for the
purpose of signing a premarital agreement unless:
(1) the assent of the party
or the prospective party to the negotiation and signing
of the
premarital agreement is in fact fully voluntary, not the product of force or
threat of force; and
(2) the lawyer
reasonably believes that the safety of the party or prospective party
can be
protected adequately during the process of negotiating the premarital agreement.
Comment
This Section is adapted from Uniform Collaborative Law Act, Section 15.
SECTION 301. FORMATION REQUIREMENTS. A marital agreement must be in a record and signed by both parties. It is enforceable without consideration.
Comment
This Section is adapted from UPAA Section 2.
In some states, there is case-law raising issues relating to a consideration requirement for marital agreements. (Premarital agreements do not raise a consideration issue because the agreement to marry can work as the consideration.) The view of this Act is that marital agreements, otherwise valid, should not be made unenforceable on the basis of a purported lack of consideration. As the American Law Institute wrote on the distinction (not requiring additional consideration for enforcing premarital agreements, but requiring it for marital agreements): “This distinction is not persuasive in the context of a legal regime of no-fault divorce in which either spouse is legally entitled to end the marriage altogether.” Principles of the Law of Family Dissolution § 7.01, comment c (2002). On the conclusion that consideration should not be required for marital agreements, see also Restatement (Third) of Property, Section 9.4 (2003); Model Marital Property Act, § 10 (1983).
SECTION 302. SCOPE OF AGREEMENT.
(a) Spouses entering into a marital 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 disposition of property upon separation, marital
dissolution, death, or the occurrence or nonoccurrence of any other event;
(3) the disposition of debt,
liability, or other obligation upon separation, marital dissolution, death, or the
occurrence or nonoccurrence of any other event;
(4)
the characterization of property during the marriage as [community][marital] or
separate;
(5)
the right to buy, sell, use, transfer, exchange, lease, expend, assign, create
a security interest in, mortgage, encumber, dispose of, or otherwise manage and
control property;
(6)
the rights of either or both spouses to interests in trusts, inheritances,
gifts, and other expectancies created by third parties;
(7)
the modification or elimination of spousal support, subject to Section 303(b);
(8)
the making of a will, trust, or other transfer effective at death;
(9) the ownership rights in and disposition of the death
benefit from a
life insurance policy;
(10)
the rights in property arising at or after the death of either party, including
but not limited to inheritance, dower, curtesy, elective share, homestead allowance,
exempt property, and family allowance;
(11)
the rights that either party might have under the provisions of other laws;
(12)
tax matters arising out of the marriage;
(13)
provisions for the resolution of disputes arising under the agreement,
including arbitration provisions;
(14) priority for
appointment of a fiduciary or guardian for an incapacitated individual or
personal representative of a decedent’s estate;
(15) choice of law
governing construction and validity of the agreement;
(16) the modification or
revocation of a premarital agreement; and
(17) any other matter not in
violation of public policy or a statute imposing a criminal penalty.
(b) A marital agreement may not adversely affect a child’s right to support, or impose fault-grounds on parties for legal separation or dissolution.
(c) Terms of a marital agreement that regulate non-economic conduct of the parties during marriage or that define rights and responsibilities of the parties regarding child custody and visitation are not binding on a court.
Comment
This
Section parallels the provisions of Section 203 for premarital agreements. With premarital agreements, the timing of the
agreement (between parties about to marry) reduces the danger that the Act’s language
will accidentally include types of transactions that are not thought of as
premarital agreements and should not be treated as premarital agreements. There is a greater concern with marital
agreements, since (a) spouses enter many otherwise enforceable financial
transactions, most of which should not be made subject to special procedural or
substantive constraints; and (b) there are significant questions about how to
deal with agreements whose primary intention may not be to waive one spouse’s
rights at dissolution of the marriage or the other spouse’s death, but where
the agreement nonetheless has that effect.
(a) A marital agreement is enforceable if the party seeking
enforcement proves that:
(1) the other party executed the agreement
voluntarily, without undue influence or duress;
(2) the agreement was not unconscionable
when it was executed;
(3) before execution of the
agreement, the other party:
(i) was provided a fair and
reasonable disclosure of the property
or financial obligations of
the party seeking enforcement;
(ii) voluntarily and expressly
waived, in a separate signed record, any right to disclosure of the property or
financial obligations of the party seeking enforcement beyond the disclosure
provided; or
(iii) had, or reasonably could
have had, an adequate knowledge of the
property or financial
obligations of the party seeking enforcement;
(4) the
other party had meaningful access to independent counsel prior to signing the
agreement; and
(5) the agreement expressly enumerated the
rights being altered or waived, or the other party had general knowledge of
those rights.
[(5) the other party was represented by counsel, or, if the other party
was not represented by counsel, the agreement stated, in language easily
understandable by an adult of ordinary intelligence with no legal training, the
nature of any rights or claims otherwise arising at dissolution of marriage or
at death that were altered by the agreement, and the nature of that alteration.]
(b)
A waiver or modification of spousal support in a marital agreement is not
enforceable to the extent that the waiver or modification would limit the
assets or income available to the party to an amount less than that allowed for
persons eligible for need-based medical or other forms of public assistance.
[(b) A court
may modify, or refuse to enforce, a marital agreement, to the extent that
enforcement would result in undue hardship for a party such that enforcement
would be unconscionable. A determination
of unconscionability shall be based on the parties’ circumstances at the time
of enforcement, including, but not limited to, the following factors:
(1)
the length of marriage;
(2)
the loss of earning ability due to illness, disability, or care of the parties’
children or other family members;
(3)
the extent to which the agreement was motivated by an intention to protect the
interests of third parties, such as children of a prior marriage or other
family members; and
(4)
any history of domestic violence between the parties.]
(c)
A court may refuse to enforce a waiver or modification of spousal support as
appropriate where there is a history of domestic violence between the parties
or against children of the parties.
(d)
Unless the agreement expressly states otherwise,
terms in the agreement should be treated as severable, such that the
modification or non-enforcement of one provision will not require the
modification or non-enforcement of other provisions or the agreement as a
whole.
Comment
This
Section is adapted from UPAA, Section 6.
The
main difference between this Section, for marital agreements, and Section 204
for premarital agreements, is that for premarital agreements the burden of
proof is on the party opposing enforcement, while for marital agreements the
burden of proof is on the party seeking to enforce the agreement.
[Sub-section
(a)(5) is adapted from the Restatement
(Third) of Property, Section 9.4(3) (2003).]
Sub-section
(b) is adapted from N.D. Cent. Code Section 30.1-05-07.
Disclosure will qualify as “fair and
reasonable” even if a value is approximate or difficult to determine, and even
if there are minor inaccuracies.
The
language in bracketed subsection (b) is adapted from the American Law
Institute’s Principles of the Law of
Family Dissolution, Section 7.05 (2002).]
Waiver or
modification of claims relating to a spouse’s pension are subject to the
constraints of applicable state and federal law, including but not limited to ERISA
(Employee Retirement Income Security Act of 1974, 19 U.S.C. 1001 et seq.).
SECTION 304. ATTORNEY OBLIGATIONS RELATING TO COERCIVE OR VIOLENT
RELATIONSHIPS.
(a) The lawyer representing a client
relating to the drafting, negotiation, and signing of a marital agreement shall
reasonably assess whether the party the lawyer represents has a history of a
coercive or violent relationship with the other party or prospective party to
the agreement.
(b) If the lawyer reasonably
believes that the party the lawyer represents regarding a marital agreement or
a party who consults the lawyer relating to such an agreement has a history of
a coercive or violent relationship with the other party or prospective party to
the agreement, the lawyer may not begin or continue representation for the purpose
of signing a marital agreement unless:
(1) the assent of the
party or the prospective party to the negotiation and signing
of the
marital agreement is in fact fully voluntary, not the product of force or
threat of force; and
(2) the lawyer reasonably
believes that the safety of the party or prospective party
can be
protected adequately during the process of negotiating the marital agreement.
Comment
This
Section is adapted from Uniform Collaborative Law Act, Section 15.