COUNCIL OF STATE GOVERNMENTS INCLUDES NEW UNIFORM ACT AS “SUGGESTED STATE LEGISLATION”
September 19, 2013 – The Uniform Premarital and Marital
Agreements Act was included today by the Council of State Governments
(CSG) as “Suggested State Legislation” at the CSG’s National Conference
in Kansas City, Missouri. The Uniform Premarital and Marital Agreements
Act, drafted and approved by the Uniform Law Commission (ULC) in 2012,
is a new state law that brings clarity and consistency to a range of
legal agreements between spouses or those who are about to become
spouses. It was enacted this year in Colorado and North Dakota.
A number of states currently treat premarital agreements and marital
agreements under different legal standards, with higher burdens on those
who wish to enforce marital agreements. However, the Uniform
Premarital and Marital Agreements Act treats premarital agreements and
marital agreements under the same set of principles and requirements.
The Uniform Act also addresses the varying standards on both types of
agreements that have led to conflicting laws, judgments, and
uncertainty about enforcement as couples move from state to state. The
Act harmonizes the standards in existing uniform acts governing
premarital and marital agreements (including the Uniform Premarital
Agreement Act, Uniform Marital Property Act, Uniform Probate Code, and
Model Marriage and Divorce Act). The Act also addresses waivers of
rights at death by agreement and requires explicit knowledge of other
waivers. Waivers and unconscionability are also addressed with
provisions relating to domestic violence.
Forty years ago, state courts generally refused to enforce premarital
agreements that altered the parties’ right at divorce, on the basis
that such agreements were attempts to alter the terms of a status,
marriage, or because they had the effect of encouraging divorce. Over
the course of the 1970s and 1980s, nearly every state changed its law,
and currently every state allows at least some divorce-focused
premarital agreements to be enforced, though the standards for
regulating those agreements vary greatly from state to state.
The Uniform Premarital Agreement Act was promulgated by the ULC in
1983; since then, it has been adopted by 26 jurisdictions. The Uniform
Premarital Agreement Act brought some consistency to the legal treatment
of premarital agreements, especially as concerns rights at dissolution
of marriage.
However, the situation regarding marital agreements has been far less
settled and consistent. Some states have neither case law nor
legislation, while the remaining states have created a wide range of
approaches.
The general approach of this new Uniform Act is that parties should
be free, within broad limits, to choose the financial terms of their
marriage. The limits are those of due process in formation, on the one
hand, and certain minimal standards of substantive fairness, on the
other.
Further information on the Uniform Premarital and Marital Agreements Act can be found at the ULC’s website at www.uniformlaws.org.
About “Suggested State Legislation”
Suggested
state legislation is a compilation of draft legislation from state
statutes on topics of current interest and importance to the states.
For more than 60 years, The Council of State Governments’ Suggested
State Legislation (SSL) program has informed state policy-makers on a
broad range of legislative issues, and its national Committee on
Suggested State Legislation has been a model on interstate dialogue.
SSL Committee members represent all regions of the country. They are
generally legislators, legislative staff and other state governmental
officials who contribute their time and efforts to assisting the states
in the identification of timely and innovative state legislation.
About the Uniform Law CommissionThe Uniform Law
Commission is comprised of more than 350 practicing lawyers,
governmental lawyers, judges, law professors and lawyer-legislators, who
are appointed by each state, the District of Columbia, Puerto Rico and
the U.S. Virgin Islands to research, draft and promote enactment of
uniform state laws in areas of state laws where uniformity is desirable
and practical. Now in its 122nd year, the ULC has provided
states with over 250 uniform acts that help bring clarity and stability
to critical areas of state statutory law.
About the Council of State GovernmentsThe
Council of State Governments is the country’s only organization serving
all three branches of state government. CSG is a region-based forum
that fosters the exchange of insights and ideas to help state officials
shape public policy. This offers unparalleled regional, national and
international opportunities to network, develop leaders, collaborate and
create problem-solving partnerships.