A premarital agreement is an agreement between prospective spouses made in contemplation of marriage that is becomes effective upon marriage. Premarital agreements must be in writing and signed by both parties.
Premarital agreements may cover the following subjects:
- Property rights and obligations, including property management and control, and disposition of property upon separation, divorce, death, or other events.
- Making wills, trusts or other arrangements to carry out the premarital agreement provisions.
- Life insurance ownership rights and disposition of death benefits.
- Choice of law governing the agreement.
- Any other matter, including personal rights and obligations that do not violate public policy or a statute imposing a criminal penalty.
Premarital agreements may not limit child support. However, spousal support may be limited if certain conditions are met.
After marriage, a premarital agreement can only be amended or revoked by a written agreement signed by both parties.
A premarital agreement is not enforceable if the party against whom enforcement is sought proves either: (1) that party did not execute the agreement voluntarily; or (2) the agreement was unconscionable.
Unconscionable. The issue of whether a premarital agreement is unconscionable is decided by the court as a matter of law. A premarital agreement is unconscionable when it was executed if before execution of the agreement, all of the following applied to that party:
- That party was not provided a fair, reasonable, and full disclosure of the other party’s property or financial obligations.
- That party did not voluntarily and expressly waive, in writing, any right to disclosure of the other party’s property or financial obligations beyond the disclosure provided.
- That party did not have, or reasonably could not have had, an adequate knowledge of the other party’s property or financial obligations.
Not Voluntary. The issue of whether a premarital agreement was not executed voluntarily requires a court to find:
- The party against whom enforcement is sought was represented by independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived such representation in a separate writing.
- The party against whom enforcement is sought 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.
- The party against whom enforcement is sought, if unrepresented by legal counsel, was 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, and was proficient in the language in which the explanation of the party's rights was conducted and in which the agreement was written.
- The explanation must be in writing and delivered to the party prior to signing the agreement.
- The unrepresented party, on or before the signing of the premarital agreement, must execute a document declaring that he or she received the information required and indicate who provided that information.
- The agreement and writings were not executed under duress, fraud, or undue influence, and the parties did not lack capacity to enter into the agreement.
- Any other factors the court deems relevant.
Any provision in a premarital agreement regarding spousal support, including a waiver of spousal support, is not enforceable if:
- The party against whom enforcement of the spousal support provision is sought was not represented by independent counsel when the agreement containing the provision was signed; or
- If the spousal support provision is unconscionable at the time of enforcement.
Also, an unenforceable spousal support provision does not become enforceable if the party against whom enforcement is sought was represented by independent counsel.
Whether you are contemplating marriage and wondering if a premarital agreement is right for you, or if you have questions about whether the premarital agreement in your marriage is enforceable, Bickford Blado & Botros is available to meet with you.