Back when prenups were beginning to rise in popularity, requirements for validity of those agreements varied wildly among the states. You could say it was the wild, wild, west of prenups! This made it difficult for couples, especially couples who moved to different states, to have a solid grasp of the requirements. Ultimately, missteps while drafting a prenup could lead to the invalidation of the entire agreement. Yikes! It was clear that prenups were on the rise and some uniformity in the requirements would be especially helpful to couples.
Enter the Uniform Prenuptial Agreement Act (UPAA)! The UPAA was created in 1983 by the Uniform Law Commission with the goal of unifying prenuptial agreement laws across the country. Creating it, however, was only half the battle. In order to achieve its goal of unifying prenup laws, the UPAA had to be adopted by the individual states. To date, a majority of states have adopted the UPAA including:
Arizona, Arkansas, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Maine, Montana, Nebraska, Nevada, New Jersey, New Mexico, North Carolina, North Dakota, Oregon, Rhode Island, South Dakota, Texas, Utah, Virginia, and Wisconsin.
It is important to note that although these states have adopted the UPAA, this doesn’t mean that their prenup laws are identical. In fact, in many of the above states, the laws and requirements are quite different.
What’s in the UPAA?
The UPAA essentially creates a framework for valid and enforceable prenuptial agreements. The states can either adopt the act in its entirety or create its own modified version. For starters, the UPAA requires that couples provide financial disclosure to each other prior to signing their prenup. That means that each party must give a detailed breakdown of their finances including the good, bad, and ugly (and debt!). Failure to provide sufficient financial disclosure could spell disaster for the enforcement of your agreement down the road. Next, you and your partner must be given the opportunity to consult with independent counsel prior to signing the prenup. This doesn’t mean, however, that you MUST have an attorney (depending on the state). Instead, it means that you and your partner need to have a sufficient amount of time prior to the wedding to consult with an attorney, if that is your wish. Again, failure to abide by this requirement could invalidate your agreement, according to the UPAA.
As you may or may not be aware, there are limitations to what you can include in your prenup. The UPAA has suggested what should and should not be addressed in your prenup. Some of the subjects you can include are:
- Designation of property, assets, and liabilities (i.e. is it marital or non-marital?)
- Property division upon divorce
- Rights and obligations regarding property
- Spousal support/alimony limitations or waivers
- Involvement of wills and trusts
- Life insurance policy ownership rights
- What state law will govern the agreement
- Other subjects/provisions that do not violate the law or public policy
So, the UPAA has decided that all of these subjects are good to go in your prenup! Naturally, the UPAA has also declared several subjects off limits when it comes to your prenup. Some of these topics include:
- Child custody
- Child support
- Domestic violence victim rights
- Modifications of grounds for divorce
- Penalizing divorce or separation
- Violations of the law or public policy
If you take a gander above at the list of subjects that can be addressed in your prenup, you may notice that they pretty much all deal with property, assets, and liabilities. Put another way, they all deal with MONEY! And, that makes sense because prenups are generally financial contracts meant to protect and safeguard each party’s financial future. However, marriages are about more than just money and many couples like to include non-financial terms in their prenups. These terms are often referred to as lifestyle clauses. The biggest example is the infidelity clause (which is popular with celebs!).
While the UPAA mentions lifestyle clauses in passing, it does not take a strong stance. This means that the enforceability of these provisions is questionable, and the states are on their own when it comes to non-financial terms. This also means that there is no general uniformity among the states as to this issue. As the UPAA is intended to create uniformity on the states, it left this one open for interpretation.
However, the UPAA does make mention of certain scenarios where courts have and have not agreed to enforce lifestyle clauses. For example, the UPAA commented on clauses aimed at curbing cheating and drug use as not being enforceable and provisions agreeing to arbitrate (instead of going to divorce court) and waiving “fault grounds” for divorce or separation, as being enforceable.
Just to hammer home the shaky ground that lifestyle clauses stand on, let’s take a look at them through a state law analysis. States vary wildly on this issue. In some states, the general consensus is that they are not enforceable. However, in most states, there is no law on the books discussing these clauses. What’s the significance of that? Well, with no black letter law giving explicit directions, it is generally left to the individual judge assigned to your case to decide whether or not your lifestyle clause should be enforced. This can mean that enforcement of lifestyle clauses can even vary wildly within a single state. Shaky ground indeed!
UPMAA – how is it different?
In 2012, the UPAA got a bit of a facelift (no judgment!). The act is now referred to as the Uniform Prenuptial and Marital Agreement Act (UPMAA). You may notice the inclusion of marital agreements in the title of the updated act. This refers to postnuptial agreements which are entered into after marriage (as opposed to prenups which are entered into before marriage). A few other changes/additions include:
- Defining prenuptial agreement
- Establishing that prenups must be in writing
- Specifying that consideration is not required for a prenup to be valid
- Establishes that prenups that are unconscionable at the time of execution are unenforceable
- Prohibits enforcement of prenups signed under duress (i.e. involuntarily)
- And much more!
Remember that just because your state adopted the UPAA/UPMAA, doesn’t mean that the laws and requirements are identical to the Act or to other states that have adopted it. States can adopt the act in whole or in part and can modify or eliminate any requirements. Be sure to check out your state’s requirements (especially for lifestyle clauses if you want to include those!) before you enter into your agreement. Happing prenup-ing!
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: [email protected]