A premarital agreement must be in writing, contain a statement of the assets and liabilities of each party attached to it (or waiver), and be signed by both parties. Each party must have independent counsel (or waiver). The agreement is effective upon the marriage of the parties and is enforceable without consideration.
What is Covered in a Premarital Agreement?
The agreement should be the product of full and fair disclosure and not unconscionable. The statute defines that an unconscionable premarital agreement is one that:
- Would render a spouse without a means of reasonable support due to a lack of property or unemployability
- Would make a spouse a public charge
- Would provide a standard of living far below that which was enjoyed before the marriage.
Couples commonly address the following issues in a premarital agreement:
- The rights and obligations of each of the parties in any of the property of either or both whenever and wherever acquired or located
- The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property
- The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event
- The modification or elimination of spousal support
- The making of a will, trust, or other arrangements to carry out the provisions of the agreement
- The ownership rights and disposition of the death benefit from a life insurance policy
- The choice of law governing the agreement
- Any other matter, including the personal rights and obligation of either party, not in violation of public policy.
After the marriage of the parties, a premarital agreement may be amended or revoked only by a written agreement signed by the parties. In doing so it is wise to use a modification event as an opportunity to ratify the agreement to the extent it is not being modified. Such amendment or revocation is enforceable without consideration.
A premarital agreement cannot adversely affect the right of a child to support or provide for an automatic parenting plan without a best interests determination.
Setting Aside a Premarital Partnership Agreement
The burden of proof to set aside a premarital agreement is on the party seeking its invalidity by clear and convincing evidence. Below are grounds needed to set aside a premarital agreement:
- That the agreement was entered into involuntarily
- That the agreement was unconscionable at inception
- That the party opposing enforcement was not provided full and fair disclosure of the earnings, property, and financial obligations of the other party, or 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
- That the party opposing enforcement did not consult with independent legal counsel or did not voluntarily and expressly waive in writing the opportunity to consult with independent counsel
Mid Marriage Agreements
Like premarital agreements, a cohabitation agreement providing for palimony needs to be in writing. Mid Marriage Agreements are viewed with skepticism particularly in cases where there is a lack of bargaining power for the party who wishes to remain married. Thus, unlike a premarital agreement, a mid marriage agreement must be fair and equitable, both at the time of execution and implementation.