How Is a Prenuptial Agreement Enforced?
Two parties planning to marry will enter into a prenuptial agreement in order to determine the distribution of property and other rights in the event of divorce. Should one party not adhere to the agreement at the time of dissolution of the marriage, the other party may bring suit to compel enforcement. State law will generally govern how individual courts choose to enforce a prenuptial agreement.
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Contract Law Principles
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A premarital agreement is a legal contract. Contract law principles require valid execution of the contract for courts to enforce it. Although some states enact their own specific execution requirements for prenuptial agreements, many states adhere to basic contract principles for proper execution. Prenuptial agreements must generally be written and signed by both parties, and courts will not enforce any contract executed under conditions of unfairness or duress. The law also refuses to enforce any prenuptial agreement that encourages divorce by means of offering an undue financial benefit to one party upon dissolution of the marriage.
UPAA
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The Uniform Premarital Agreement Act of 1983 (UPAA), Section 6, attempted to establish a broad set of principles to govern enforcement of prenuptial agreements. Under the Act, any party seeking to prevent enforcement of a prenuptial agreement must show involuntary execution, or unconscionability (unfairness) of the agreement at the time of execution. If the party claims unconscionability, he must also show inadequate disclosure of the other party's finances and the fact that he didn't waive his right to such disclosure. More than half of U.S. jurisdictions and Washington, D.C. have incorporated some version of the UPAA into their own statutes.
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ALI Principles
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The American Law Institute (ALI) has its own set of requirements for enforcement of a prenuptial agreement and based on different principles than those of the UPAA. Under the ALI principles, enforcement requires that the other party give informed consent to the agreement and that the enforcing party obtain that consent without duress of any kind. Unlike the UPAA, the ALI principles place the burden of justifying enforcement on the party seeking enforcement rather than demanding that the other party justify lack of enforcement. Most jurisdictions have not implemented any of the ALI principles.
Spousal Support Waivers
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Jurisdictions are generally split on whether a party who would otherwise be entitled to spousal financial support upon dissolution may waive that right in a prenuptial agreement. Some jurisdictions allow the spousal support waiver, although many of these jurisdictions have increased requirements of scrutiny to ensure that the waiver was truly voluntary. However, other jurisdictions will not allow a disadvantaged spouse to contract away his right to financial support.
Second-Look Jurisdictions
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Many jurisdictions will analyze the enforceability of a prenuptial agreement based not only on the agreement's fairness at the moment of execution but also at the time of enforcement upon dissolution. These "look-back" or "second-look jurisdictions" will refuse to enforce even a validly executed contract if, at the time of dissolution, enforcement of the contract would be unfair or unconscionable. Look-back generally only occurs for certain types of marriages, such as those that have existed for a long period of time, those in which a child was born or adopted,and those in which party circumstances changed significantly since the beginning of the marriage in a way that could not be foreseen.
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