D R A F T
FOR DISCUSSION ONLY
PREMARITAL AND MARITAL AGREEMENTS ACT
_____________________________________________________
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
_____________________________________________________
For November 11 – 12, 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.
October 13, 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, 500
W. Jefferson St., Suite 2800, 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
MICHAEL HOUGHTON, P.O.
Box 1347, 1201 N. Market St., 18th Floor, Wilmington, DE 19899, 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
Prefatory Note.................................................................................................................................. i
SECTION 1. SHORT TITLE........................................................................................................ 1
SECTION 2. DEFINITIONS........................................................................................................ 1
SECTION 3. CONTRACT LAW AND EQUITABLE PRINCIPLES....................................... 3
SECTION 4. GOVERNING LAW............................................................................................... 4
SECTION 5. FORMATION REQUIREMENTS......................................................................... 5
SECTION 6. EFFECTIVE DATE OF AGREEMENT............................................................... 6
SECTION 7. VOID MARRIAGE................................................................................................ 6
SECTION
8. SCOPE OF AGREEMENT..................................................................................... 6
SECTION
9. ENFORCEMENT.................................................................................................. 10
SECTION 10. REVOCATION OF AGREEMENT................................................................... 12
SECTION 11. LIMITATION OF ACTIONS............................................................................. 12
SECTION 12. UNIFORMITY OF APPLICATION AND CONSTRUCTION....................... 13
SECTION 13. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL
AND NATIONAL COMMERCE ACT................................................................................................................................... 13
SECTION 14. SAVINGS CLAUSE........................................................................................... 13
[SECTION 15. REPEALS........................................................................................................... 13
SECTION 16. EFFECTIVE DATE............................................................................................ 13
PREMARITAL
AND MARITAL AGREEMENTS ACT
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
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 Uniform Premarital Agreement
Act, either at the time of enactment or at a later date. See Amberlynn Curry, Comment, “The Uniform Premarital Agreement Act
and Its Variations throughout the States,” 23 Journal of the American Academy of Matrimonial Lawyers 355 (2010). Over the years, commentators have offered a
variety of criticisms of that Act. 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” (2011), 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 Uniform
Premarital Agreement Act has brought some consistency to the legal treatment of
premarital agreements, especially as concerns rights at dissolution of
marriage. However, the situation
regarding agreements waiving rights at the death of the other spouse 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, Section 2-213; Restatement
(Third) of Property, Section 9.4 (2003); Model Marital Property Act, Section 10 (1983); and Internal Revenue Code, Sections 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 and
requirements. 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 authorize some form of fairness review based
on the parties’ circumstances at the time the agreement is to be enforced, a bracketed
provision in section 9 offers the option of refusing enforcement based on a
finding of unconscionability at the time of enforcement.
This
act chooses to treat premarital agreements and marital agreements 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, e.g., Sean Hannon Williams, “Postnuptial Agreements,” 2007 Wisconsin Law Review 827, 838-845; Brian
H. Bix, “The
PREMARITAL AND MARITAL AGREEMENTS ACT
SECTION
1. SHORT TITLE. This [act] may be cited as the “Premarital and Marital
Agreements Act.”
SECTION
2. DEFINITIONS. In this [act]:
(1) “Amendment” means a modification of the terms
of a premarital or marital agreement which does not result in the revocation of
the agreement.
(2) “Child”
means an unemancipated individual who
(A)
has not attained [18 years of age]; or
(B) has attained [18
years of age] but is disabled and entitled to ongoing child support.
(3) “Child custody” means the physical or legal
custody of a child, visitation, access, parenting time, or other form of
custodial responsibility or decision-making for a child.
(4) “Marital agreement” means an agreement
between spouses that affirms, modifies or waives legal rights and obligations
otherwise arising between them under applicable law during the marriage, at
separation, at marital dissolution, or at the death of one of the spouses by
virtue of their marital status. The term
includes an amendment of a premarital agreement or prior marital agreement. The term does not include a separation
agreement, marriage settlement agreement, or other agreement incident to
marital dissolution or separation.
(5) “Marital dissolution” means the ending of a
marriage by court decree. The term
includes divorce, dissolution, and annulment.
(6) “Premarital
agreement” means an agreement between individuals contemplating marriage that
affirms, modifies or waives legal rights and obligations that would otherwise
arise between them under applicable law during the marriage, at separation, at
marital dissolution, or at the death of one of the spouses by virtue of their
marital status.
(7) “Property” means all property, whether real,
personal, or mixed, or tangible or intangible, or any
right or interest therein.
(8) “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.
(9) “Separation”
means a court-decreed separation of spouses which does not terminate the
marriage.
(10) “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.
(11) "State" means
a state of the United States, the District of Columbia, Puerto Rico, the United
States Virgin Islands, or any territory or insular possession subject to the
jurisdiction of the United States.
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 other than this [act].
Comment
With premarital agreements, the
nature and timing of the agreement (between parties who are 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 are not
problematice and 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.
In terms of another uniform act, the purpose is to exclude from coverage
“acts and events that have significance apart from their effect” upon rights at
dissolution of the marriage or at the death of one of the spouses. See Uniform
Probate Code, Section 2-512 (“Events of Independent Significance”). Such transactions might include (but are by
no means limited to) the creation of joint and several liability through real
estate mortgages, motor vehicle financing agreements, joint lines of credit,
overdraft protection, loan guaranties, joint income tax returns, creation of
joint property ownership with a right of survivorship, joint property with payment
on death provisions or transfer on death provisions, durable power of attorney
or medical power of attorney, buy-sell agreements, agreements regarding the
valuation of property, the placing of marital property into an irrevocable
trust for a child, the drawing up of joint wills, etc.
The shorter definition of
“premarital agreement” used by the Uniform Premarital Agreement Act (“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,” 1 Wake Forest Law Review Online 61 (2011),
available at http://lawreview.law.wfu.edu/articles/.
This Act covers marital agreements
but not separation agreements, for which all states already have fairly well
established (and relatively uniform) case-law.
The two types of agreements are usually distinguished factually based on
whether the couple at the time of the agreement intend
for their marriage to continue or whether legal separation or dissolution of
the marriage are planned or imminent. To
avoid deception of the other party or the court regarding intentions, some
jurisdictions will refuse to enforce a marital agreement if it is quickly followed
by an action for legal separation or dissolution of the marriage. See, e.g., Minn. Stat. §
519.11, subd. 1a(d)(marital agreement presumed to be unenforceable if
separation of dissolution sought within two years; in such a case spouse
seeking enforcement must prove that the agreement was fair and equitable).
The restriction of “separation” to
court-decreed separation was intended to avoid line-drawing issues if mere de
facto physical separations were included.
This does raise complications in jurisdictions which do not have
judicially decreed legal separations, and those jurisdictions may wish to alter
this definition according to their own practices and case-law.
SECTION 3. CONTRACT LAW AND EQUITABLE PRINCIPLES. The
law of contracts and principles of equity supplement this [act], except to the
extent displaced by this [act] or other law of this state.
Comment
This
section is similar to Section 106 of the Uniform
Trust Code and Section 1-103(b) of the Uniform
Commercial Code. Because this act
contains broad, amorphous defenses to enforcement like “voluntariness” and
“unconscionability” (section 9), there is a significant risk that parties, and
even some courts, might assume that other conventional doctrinal contract law
defenses are not available because preempted.
This section is intended to make clear that common law contract doctrine and
principles of equity continue to apply where the act does not expressly
displace them. 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, abandonment, waiver, 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. Cf. In re Marriage of Balcof, 141
Cal.App.4th 1509, 47 Cal.Rptr.3d 183 (2006) (marital agreement held
unenforceable on the basis of undue influence and duress). Rules of construction, including rules of
severability of provisions, are also to be taken from state rules and
principles. Cf. Rivera v. Rivera, 243 P.3d 1148 (N.M. App. 2010) (premarital
agreement that improperly waived the right to alimony and that contained no
severability clause deemed invalid in its entirety). Additionally, state rules and principles will
govern the ability of parties to include elevated formalities for the revocation
or amendment of their agreements.
SECTION 4. GOVERNING LAW. The validity, enforceability, and construction of the terms of a
premarital or marital agreement are determined by:
(1) the law of the jurisdiction designated in the terms, [if
that jurisdiction has a significant
relation to the agreement or either of the parties, and] unless the designation
of that jurisdiction’s law is contrary to a strong public policy of the forum
state [or 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
the bracketed section adding language taken from the Revised Article 1 of the Uniform Commercial Code, Section
1-301]. It is consistent with Uniform Premarital Agreement Act,
Section 3(a)(7), but is broader in scope. 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, Sections 186-188 (1971).
These conflict of laws principles include the
authority of courts to refuse to enforce the rule(s) of another jurisdiction,
even if that jurisdiction has the most significant relationship to the
agreement, if that other jurisdiction’s rules are contrary to the strongly held
public policy of the enforcing state.
“Significant relation” and “strong public policy” are to be understood
under existing state principles relating to conflict of laws, and they mean
something more than that the forum law differs.
See, e.g., International Hotels Corporation v. Golden,
15 N.Y.2d 9, 14, 254 N.Y.S.2d 527, 530, 203 N.E.2d 210, 212-13 (1964); Russell
J. Weintraub, Commentary on the Conflict
of Laws 118-125 (6th ed., Foundation Press, 2010),
The bracketed terms are present for
those states that prefer that parties be able to choose law to govern their
agreement only from those jurisdictions that have some significant connection
to the agreement (a restriction present, e.g.,
in the Uniform Commercial Code). For examples of choice of law and conflict
of law principles operating in this area, see, e.g., Bradley v. Bradley,
164 P.3d 567 (Wyo. 2007) (premarital agreement had choice of law provision
selecting Minnesota law; amendment to agreement held invalid because it did not
comply with Minnesota law for modifying agreements); Gamache v. Smurro, 904 A.2d 91 (Vt. 2006) (applying California law
to prenuptial agreement signed in California); Black v. Powers, 628 S.E.2d 546 (Va. App. 2006) (Virginia couple
drafted agreement in Virginia, but signed it during short stay in the Virgin
Islands prior to their wedding there; agreement will be covered by Virgin
Islands law, unless there is a clear party intention that Virginia law apply or
if Virgin Island law is contrary to the this forum state’s public policy).
SECTION 5. FORMATION
REQUIREMENTS. A premarital or
marital agreement must be in a record and signed by both parties. It is enforceable without consideration.
Comment
This section is adapted from Uniform Premarital Agreement Act,
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 for consideration for the
waiver promises in premarital agreements have concluded that the other party’s
agreement to marry or the act of marrying constitute valid legal
consideration. However, most modern
approaches to premarital agreements have by-passed the consideration
requirement entirely: e.g., Uniform Premarital Agreement Act,
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).
In some states,
there is case-law raising issues relating to a consideration
requirement for marital agreements. 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, Section 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) and Model Marital Property Act, Section 10
(1983).
SECTION
6. EFFECTIVE DATE OF AGREEMENT. A
premarital agreement is effective on marriage.
A marital agreement is effective on execution unless the agreement
provides otherwise.
Comment
This section is adapted from Uniform Premarital Agreement Act,
Section 4. The Committee took notice of
the practice that parties sometimes enter agreements that are part cohabitation
agreement and part premarital agreement.
This act deals only with the provisions triggered by marriage, without
undermining the enforceability of the cohabitation agreement during the period
of cohabitation.
SECTION
7. VOID MARRIAGE. If a marriage is determined to be void, a
premarital or marital agreement is unenforceable except to the extent necessary
to avoid an inequitable result.
Comment
This section is adapted from Uniform Premarital Agreement Act,
Section 7. For example, if John and Joan
went through a marriage ceremony, preceded by a premarital agreement, but,
unknown to Joan, John was still legally married to Martha, the marriage between
John and Joan would be void, and whether their premarital agreement should be
enforced would be left to the discretion of the court, taking into account
whether enforcement in whole or in part would be required to avoid an
inequitable result.
(a)
Subject to subsection (b), a premarital or marital agreement may include terms
relating to:
(1) the rights and obligations of each of the parties in any of
the property of either
or
both of them, whenever acquired and wherever located;
(2) the
characterization of property or debt during the marriage as
[community][marital] or separate;
(3) 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;
(4) the disposition of property or
debt on separation, marital dissolution, death, or the occurrence or
nonoccurrence of any other event;
(5) the modification
or elimination of spousal support;
(6) the rights of either or both spouses to interests in trusts,
inheritances, bequests, gifts, and expectancies created by third parties;
(7) the making of a will, trust, beneficiary designation, or
other governing instrument to carry out the provisions of the agreement;
(8) the rights in property arising at or after the death of
either party, including
inheritance,
dower, curtesy, elective share, homestead allowance, exempt property, and family
allowance;
(9) appointment of a fiduciary, guardian, personal
representative, or agent for person or property;
(10)
tax matters;
(11) methods for resolution of disputes arising under the
agreement, including arbitration and mediation;
(12) choice of law governing the validity, enforceability, and
construction of the agreement;
(13) amendment of a prior premarital or marital agreement between
the parties;
(14) formalities required to amend or revoke the agreement in
addition to those required by this [act]; and
(15) any other matter not in
violation of public policy.
(b) A term in a premarital or marital
agreement is not enforceable to the extent that it:
(1) adversely affects a child’s right to support;
(2) limits or expands the grounds for marital dissolution or
separation otherwise available under law of this state other than this [act];
(3) requires
or forbids a court to evaluate marital conduct in determining the
economic
consequences of separation, marital dissolution, or death, except as the term
is
consistent
with applicable law of this state other than this [act];
(4) penalizes
a party for initiating the legal action leading to a decree of marital
dissolution
or separation; or
(5) limits
or restricts remedies available to a victim of domestic violence under
law
of this state other than this [act].
(c) A term in a
premarital or marital agreement that defines the rights and responsibilities of
the parties regarding child custody is not binding on a court.
Legislative Note: A state should select the appropriate term
for subsection (a)(2):
either
“marital” or “community.”
Comment
This section is adapted from Uniform Premarital Agreement Act,
Section 3(a). Subsection (b)(2), (3) & (4) are adapted from the American Law Institute,
Principles of the Law of Family Dissolution, Section 7.08.
Relating to subsection (a)(7), the Committee is aware that some states have
provisions that forbid or discourage agreements to make wills. This subsection is not intended to override such
state laws or principles.
Subsection (b)(1)
applies also to step-children, to whatever extent the state imposes
child-support obligation on step-parents.
Amendment and revocation of
premarital and marital agreements is governed by a number of provisions in this
section and other sections of this act.
Under section 3, the state’s general contract law rules and principles
determine whether and how the parties can vary the formalities or other
requirements for amendment or revocation.
Section 8(a)(14) reaffirms that a provision
establishing heightened formalities and other requirements for amendment or
revocation is a legitimate provision for a premarital and marital
agreements. Actual modification of a
premarital agreement or prior marital agreement is a marital agreement (see
section 8(a)(13)) falling under the constraints of
section 8(b) and (c) and section 9.
However, a revocation of an agreement requires only a signed, written
agreement (as long as the parties have not earlier agreed to further requirements
for a revocation). See section 10.
The Committee has taken notice of
the general 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). And while courts generally refuse to enforce
provisions in premarital and marital agreements that regulate (or attach
financial penalties to) conduct during the marriage, e.g., Diosdado v. Diosdado,
118 Cal. Rptr.2d 494 (App. 2002) (refusing to enforce provision in agreement
imposing financial penalty for infidelity); Marriage
of Dargan, 13 Cal. Rptr. 522 (App. 2004) (refusing to enforce provision
that penalized husband’s drug use by transfer of property), the act does not
expressly deal with such provisions (beyond subsection (a)(15), leaving issues
of public policy to each state’s courts), in part because a few courts have
chosen to enforce premarital agreements relating to parties’ cooperating in
obtaining religious divorces or agreeing to appear before a religious arbitration
board. E.g., Avitzur v. Avitzur, 446 N.E.2d 136 (N.Y. 1983) (holding
enforceable religious premarital agreement term requiring parties to appear
before religious tribunal and accept its decision regarding a religious
divorce).
While there appear to be scattered
cases in the distinctly different context of separation agreements where a
court has enforced the parties’ agreement to avoid fault grounds for divorce
e.g., Masser v. Masser, 652 A.2d 219
(N.J. App. Div. 1994) (and we are aware of no case law enforcing an agreement
to avoid no-fault grounds); cf. Eason v. Eason, 682 S.E.2d 804
(S.C. 2009) (agreement not to use adultery as defense to alimony claim
enforceable), taking into account the different context in which premarital and
marital agreements are entered, the Committee preferred the position of the
American Law Institute, that agreements affecting divorce grounds in any way
should not be enforceable.
The Committee took
notice of the common practice of escalator clauses in premarital and marital
agreements, making parties’ property rights vary with the length of the
marriage. Subsection (b)(4), which makes
provisions unenforceable that penalize one party’s initiating an action that
leads to the dissolution of a marriage, does not cover such escalator
clauses.
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) In this section:
(1)
“Access to independent legal representation” means adequate time to retain
and consult an independent
lawyer before signing a premarital or marital agreement and either
the financial ability to retain
the lawyer or an offer from the other party to the agreement to pay
the costs of retaining and
consulting the lawyer.
(2) “Fair and reasonable
financial disclosure” means a reasonably accurate
description of the nature and value of a party’s income, property, and
liabilities.
(b) A premarital or marital agreement is not enforceable
against a party unless:
(1) the party
executed the agreement voluntarily [and not as a result of duress];
(2) the agreement was not
unconscionable when it was executed;
(3) the
party had access to independent legal representation if the other party was
represented by a lawyer or was a lawyer;
(4) the agreement stated in
plain language understandable by an adult of ordinary intelligence the nature
of any rights or obligations otherwise arising at separation, marital dissolution,
or death which were altered or waived by the agreement, and the nature of the
alteration or waiver, unless the party was represented by a lawyer or was a
lawyer; and
(5) before execution of the
agreement, the party:
(A) was provided a fair and reasonable
financial disclosure from the other
party;
(B) voluntarily
and expressly waived, in a separate signed record, a right to fair and
reasonable financial disclosure beyond the disclosure provided; or
(C) had, or reasonably could have had, adequate knowledge of
the income,
property, or liabilities of the other party.
(c) A premarital [or marital] agreement is
unenforceable if the party opposing the agreement proves that any of the
requirements of subsection (b) was not met.
[A marital agreement is unenforceable if the party seeking to enforce
the agreement fails to prove that all of the requirements of subsection (b)
were met.]
(d) A
premarital or marital agreement is not enforceable to the extent that it would
limit the income or property available to a party to an amount less than that
allowed for a person eligible for need-based medical assistance or other form
of public assistance in the state where enforcement is sought.
(e) The court shall decide a question of
unconscionability as a matter of law.
[(f) A court may modify or refuse to enforce a premarital
or marital agreement to the extent that enforcement would be unconscionable
because of undue hardship on a party.]
Legislative Note: The
bracketed subsection is appropriate for a state opting to permit a substantive
fairness review of premarital or marital agreements at the time of
enforcement.
Comment
This section is adapted from Uniform
Premarital Agreement Act, Section 6.
Under subsection (a)(5), disclosure
will qualify as “fair and reasonable” even if a value is approximate or
difficult to determine, and even if there are minor inaccuracies.
Subsection (b)(4)
is adapted from the Restatement (Third)
of Property, Section 9.4(3) (2003), and it is also similar in language and
purpose to California Family Code §1615(c)(3). In that section, reference to “plain language
understandable by an adult of ordinary intelligence” includes a requirement
that the explanation be written in a language in which the party in question
understands.
Subsection (d) as adapted from N.D. Cent. Code Section 30.1-05-07. While a few states have comparable rules,
either by statute or case-law, for
premarital agreements and for rights at divorce, this Act expands coverage of
the restriction by having it apply more generally, including marital agreements
and rights at the death of the other spouse.
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.). See,
e.g., Robins v. Geisel,
666 F.Supp.2d 463 (D. N.J. 2009) (wife’s premarital agreement waiving her right
to any of her husband’s separate property did not qualify as a waiver of her
spousal rights as beneficiary under ERISA); Strong
v. Dubin, 901 N.Y.S.2d 214 (App. Div. 2010) (waiver in premarital agreement
conforms with ERISA waiver requirement and is enforceable).
Many jurisdictions impose greater scrutiny or higher
procedural safeguards for marital agreements as compared to premarital
agreements. See, e.g., Ansin v.
Craven-Ansin, 929 N.E.2d 955 (Mass. 2010); Bedrick v. Bedrick, 17 A.3d 17 (Conn. 2011).
SECTION 10. REVOCATION OF
AGREEMENT. Unless the terms of a premarital or marital
agreement impose additional formalities, the agreement may be revoked after
marriage only in a record signed by the parties. The revocation is enforceable without
consideration. Revocation does not
include an amendment of a premarital or marital agreement.
Comment
“Revocation” means the
abnegation of the entire instrument. Any
alteration short of an entire abnegation will be a modification, and subject to
the requirements of sections 8 and 9. As
indicated in section 8(14) and the comment to section 3, it is open to the
parties, by express agreement, to increase the formalities required to revoke
an agreement.
SECTION 11. LIMITATION OF
ACTIONS. A statute of limitations
applicable to an action asserting a claim for relief under a premarital or
marital agreement is tolled during the marriage of the parties to the
agreement, but equitable defenses limiting the time for enforcement, including
laches and estoppel, are available to either party.
Comment
This Section is adapted from Uniform
Premarital Agreement Act, Section 8.
SECTION
12. UNIFORMITY OF APPLICATION AND
CONSTRUCTION. In applying and construing
this uniform act, consideration must be given to the need to promote uniformity
of the law with respect to its subject matter among states that enact it.
SECTION 13. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL
AND NATIONAL COMMERCE ACT. This [act] modifies, limits, and supersedes
the Electronic Signatures in Global and National Commerce Act, 15 U.S.C.
Section 7001 et seq., but does not modify, limit, or supersede Section 101(c)
of that act, 15 U.S.C. Section 7001(c), or authorize electronic delivery of any
of the notices described in Section 103(b) of that act, 15 U.S.C. Section
7003(b).
SECTION 14. SAVINGS CLAUSE.
This [act] does not affect any right, obligation, or liability arising
under a premarital or marital agreement entered into before the effective date
of this [act].
[SECTION 15. REPEALS. The following are repealed:
(1) [Uniform Premarital Agreement Act]
(2) [Uniform Probate
Code § 2-213 (Waiver of Right to Elect and of Other Rights)]
(3) .......................................
(4)
........................................
(5)
........................................]
SECTION 16.
EFFECTIVE DATE.
This [act] takes effect . .
. .