Wednesday, October 02, 2013
Uniform Act on Premarital Agreements
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.