UPAA

What is the UPAA (Uniform Premarital Agreements Act?)

The Uniform Premarital Agreement Act (UPAA) was first drafted in 1983 by the Uniform Law Commission, the purpose being to promote more uniformity and likelihood of later enforcement given the disparate state laws governing prenuptial agreements. For example- if you entered into a prenuptial agreement and then moved to another state, it is likely that you would want your new home state to enforce your prenuptial agreement.

Who is the Uniform Law Commission and what are they doing here?

The Uniform Law Commission, aka the National Conference of Commissioners on Uniform State Laws, aka the “ULC” for purposes of this article, is a 128-year-old organization comprised of practicing attorneys and legal scholars. The ULC surrounds itself by leather bound books (just kidding) while it researches and drafts uniform state laws in various areas of law that would benefit from uniformity. You may have heard of Uniform Commercial Code, or the Uniform Electronic Transactions Act, or the Uniform Interstate Family Support Act, among many others- yep, those were all drafted by the ULC. Although the ULC drafts and promotes the adoption of these acts, it is up to the legislature of each state to decide whether or not to adopt a uniform act, and if adopted, what modifications they would like to make to the act.

Prenuptial Agreement

Uniform Premarital and Marital Agreements Act

The younger, more attractive UPAA

In 2012, the Uniform Law Commission updated the UPAA (we all need an update from time to time, yeah?) and called the Uniform Premarital and Marital Agreements Act (UPMAA). The UPMAA established more specific procedural and substantive safeguards for prenuptial agreements. The Uniform Law Commission said it best themselves, when explaining their reasoning as to why the UPAA needed an upgrade:

“In today’s mobile society, it is particularly important that the rules governing the enforceability of premarital … agreements be standardized. The UPMAA clarifies and modernizes largely divergent state laws and creates a harmonized and uniform approach to premarital … agreements.”

Now, the UPMAA (as you can see from the name “Marital”) also applies to “Marital Agreements,” more commonly known as Postnuptial Agreements or Postnups. But, we are HelloPrenup, so we are here to talk about PREmarital agreements or prenups. Just making sure we are clear here.

So, what did the UPMAA do?

Well, to start, it gave some basic definitions. First it clarified the term “Premarital Agreement” and defined it as “an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.” Next, it defined Property as “an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings.”

Next, it set forth some requirements for a valid premarital agreement. The UPMAA did the following:

  • Set the standard that prenuptial agreements must be in writing
  • Prenuptial agreements are enforceable without consideration
  • Offered courts in every state that wished to adopt the UPMAA a general framework to help determine an agreement’s validity, regardless of what state it was executed (signed) in
  • Permitted prenuptial agreements that are found to be unconscionable at the time of execution (when the document was signed, sealed, delivered) to be unenforceable stating that unconscionability is a ground for refusing to enforce an agreement;
  • Permitted that failure of adequate disclosure is a ground for refusing to enforce an agreement (this usually refers to financial disclosure people, read our zillion other blogs on this to read more about why financial disclosure is so important……..)
  • Prohibits enforcement of a prenuptial agreement entered into involuntarily (aka the result of duress, aka you signed it with a gun to your head)
  • Prohibits enforcement of a prenuptial agreement entered into that limits remedies available to a spouse for domestic violence;
  • Supports traditional choice of law and conflict of laws principles, meaning that you, the party entering into the agreement should have the right to specify in the prenuptial agreement what state’s law should be utilized in the enforcement of this prenuptial agreement.

In 2013, Colorado and North Dakota were prenup pioneers and adopted the UPMAA, and now 28 states + the District of Columbia have adopted, many with modifications, some version of the UPAA and UPMAA. Keep in mind that each state that adopted these guidelines has also enacted their own laws pertaining to prenuptial agreements, so there are variations from state to state. No, they couldn’t make it that simple, these are lawyers we are talking about! However, the UPMAA framework of consistent baseline requirements for a valid prenuptial agreement has undoubtedly made it much easier for all of us to understand how a prenuptial agreement should be structured and include.

How do state laws differ in states that have adopted the UPMAA?

It can be tricky. Let’s use Florida as an example.

Florida
The sunshine state has adopted the UPAA, but with some sneaky modifications. The Florida statute concerning Prenuptial Agreements, called Premarital Agreements in Florida, follows the UPAA in some respects, but alters it in others. The statute reads: “Parties to a premarital agreement may contract with respect to ‘ [t]he disposition of property upon death.” The Florida adopted and modified UPAA states, however, that this ability to contract with respect to disposition of property upon death does not “alter the required formalities” under Chapter 732, section 701 or section 702 of Florida’s Probate Code. Under those statutes, a waiver of elective share is only valid if “signed by the waiving party in the presence of two subscribing witnesses.” This allows us to conclude that under Florida law, a premarital agreement that includes a death provision waiving each spouse’s elective shares of the other spouse’s estate upon death must be signed in the presence of two witnesses, even though the remainder of the agreement as pertains to spousal support or equitable division of assets would have been sufficient otherwise.

Nevada is another good example.

Nevada has adopted the UPAA, but has made it easier to challenge the validity of a prenuptial agreement in the state. Although Nevada’s adoption of the UPAA  includes the ULC’s provision about allowing a party to a prenuptial agreement to “voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided,” the Nevada premarital agreement statute allows a party to avoid enforcement by proving that the party received insufficient financial disclosure. In Nevada, sufficient disclosure is defined as fair and reasonable disclosure. Here is the exact text for your viewing pleasure:

“A premarital agreement is not enforceable if the party against whom enforcement is sought proves that: Before execution of the agreement, that party: (1) Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party; (2) 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; and (3) Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.”

Additionally, Nevada, similar to many other states, provides that if the premarital agreement would leave one party with no financial resources or financial support upon enforcement that the state divorce law would have provided for, then the premarital agreement is presumed to be invalid. The burden of proof is then on the spouse looking to uphold the agreement to show that the needy spouse had opportunity to consult an attorney prior to entering into the agreement, was not coerced, possessed substantial business acumen, and had adequate knowledge of the other party’s finances and the rights they were agreeing to forfeit under the premarital agreement. Fick v. Fick, 109 Nev. 458, 463, 851 P.2d 445, 449 (1993).

Given these factors, if a premarital agreement is to be enforced in the state of Nevada, the wealthier spouse must provide more complete financial disclosure than the UPMAA states.

HelloPrenup offers affordable prenuptial agreements.

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