Premarital Agreements

The Uniform Premarital Agreement Act (UPAA), some version of which has now been adopted in twenty-five states and the District of Columbia, lists eight subjects that may be included in premarital agreements. Six deal with property and support rights, a seventh deals with choice of law, and the eighth includes personal rights and obligations and other matters not in violation of public policy or a statute imposing a criminal penalty. It is not clear whether courts will read this provision as overriding earlier judicial decisions refusing to enforce agreements structuring couples' marriages.

UPAA provides for review of procedural and substantive fairness at the time of execution. Under it, an agreement is not enforceable if it either lacked voluntariness or was unconscionable and if the challenging party did not get fair and reasonable disclosure, or waive it, or have adequate actual knowledge of the other's finances. UPAA provides as well for a review of the substantive fairness of spousal support provisions at divorce or separation and empowers courts to modify any such provisions that cause parties to be eligible for support under a public assistance program. This review does not extend to other provisions of the agreement, nor does it extend to agreements effective on the death of a spouse.