SECTION 2. FORMALITIES. A premarital agreement must be in writing and signed by both parties. It is enforceable without consideration.
This section restates the common requirement that a premarital agreement be reduced to writing and signed by both parties (see Ariz. Rev. Stats. ง 25-201; Ark. Stats. ง 55-310; Cal. Civ. C. ง 5134; 13 Dela. Code 1974 ง 301; Idaho Code ง 32-917; Ann. Laws Mass. ch. 209, ง 25; Minn. Stats. Ann. ง 519.11; Montana Rev. C. ง 36-123; New Mex Stats. Ann. 1978 40-2-4; Ore. Rev. Stats. ง 108.140; Vernon's Texas Codes Ann. ง 5.44; Vermont Stats. Ann. Title 12, ง 181). Many states also require other formalities, including notarization or an acknowledgement (see, e.g., Arizona, Arkansas, California, Idaho, Montana, New Mexico) but may then permit the formal statutory requirement to be avoided or satisfied subsequent to execution (see In re Marriage of Cleveland, 76 Cal. App. 3d 357 (1977) (premarital agreement never acknowledged but "proved" by sworn testimony of parties in dissolution proceeding)). This act dispenses with all formal requirements except a writing signed by both parties. Although the section is framed in the singular, the agreement may consist of one or more documents intended to be part of the agreement and executed as required by this section.
Section 2 also restates what appears to be the almost universal rule regarding the marriage as consideration for a premarital agreement (see, e.g., Ga. Code ง 20-303; Barnhill v. Barnhill, 386 So. 2d 749 (Ala. Civ. App. 1980); Estate of Gillilan v. Estate of Gillilan, 406 N.E. 2d 981 (Ind. App. 1980); Friedlander v. Friedlander, 494 P.2d 208 (Wash. 1972); but cf. Wilson v. Wilson, 170 A. 2d 679, 685 (Me. 1961)). The primary importance of this rule has been to provide a degree of mutuality of benefits to support the enforceability of a premarital agreement. A marriage is a prerequisite for the effectiveness of a premarital agreement under this act (see Section 4). This requires that there be a ceremonial marriage. Even if this marriage is subsequently determined to have been void, Section 7 may provide limits of enforceability of an agreement entered into in contemplation of that marriage. Consideration as such is not required and the standards for enforceability are established by Sections 6 and 7. Nevertheless, this provision is retained here as a desirable, if not essential, restatement of the law. On the other hand, the fact that marriage is deemed to be consideration for the purpose of this act does not change the rules applicable in other areas of law (see, e.g., 26 U.S.C.A. ง 2043 (release of certain marital rights not treated as consideration for federal estate tax), 2512; Merrill v. Fahs, 324 U.S. 308, rehearing denied 324 U.S. 888 (release of marital rights in premarital agreement not adequate and full consideration for purposes of federal gift tax).
Finally, a premarital agreement is a contract. As required for any other contract, the parties must have the capacity to contract in order to enter into a binding agreement. Those persons who lack the capacity to contract but who under other provisions of law are permitted to enter into a binding agreement may enter into a premarital agreement under those other provisions of law.
SECTION 3. CONTENT.
(a) Parties to a premarital agreement may contract with respect to:
(1) the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
(2) the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
(3) the disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
(4) the modification or elimination of spousal support;
(5) the making of a will, trust, or other arrangement to carry out the provisions of the agreement;
(6) the ownership rights in and disposition of the death benefit from a life insurance policy;
(7) the choice of law governing the construction of the agreement; and
(8) any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
(b) The right of a child to support may not be adversely affected by a premarital agreement.
Section 3 permits the parties to contract in a premarital agreement with respect to any matter listed and any other matter not in violation of public policy or any statute imposing a criminal penalty. The matters are intended to be illustrative, not exclusive. Paragraph (4) of subsection (a) specifically authorizes the parties to deal with spousal support obligations. There is a split in authority among the states as to whether an premarital agreement may control the issue of spousal support. Some few states do not permit a premarital agreement to control this issue (see, e.g., In re Marriage of Winegard, 278 N.W. 2d 505 (Iowa 1979); Fricke v. Fricke, 42 N.W. 2d 500 (Wis. 1950)). However, the better view and growing trend is to permit a premarital agreement to govern this matter if the agreement and the circumstances of its execution satisfy certain standards (see, e.g., Newman v. Newman, 653 P.2d 728 (Colo. Sup. Ct. 1982); Parniawski v. Parniawski, 359 A.2d 719 (Conn. 1976); Volid v. Volid, 286 N.E. 2d 42 (Ill. 1972); Osborne v. Osborne, 428 N.E. 2d 810 (Mass. 1981); Hudson v. Hudson, 350 P.2d 596 (Okla. 1960); Unander v. Unander, 506 P.2d 719 (Ore. 1973)) (see Sections 7 and 8).
Paragraph (8) of subsection (a) makes clear that the parties may also contract with respect to other matters, including personal rights and obligations, not in violation of public policy or a criminal statute. Hence, subject to this limitation, an agreement may provide for such matters as the choice of abode, the freedom to pursue career opportunities, the upbringing of children, and so on. However, subsection (b) of this section makes clear that an agreement may not adversely affect what would otherwise be the obligation of a party to a child.
SECTION 4. EFFECT OF MARRIAGE. A premarital agreement becomes effective upon marriage.
This section establishes a marriage as a prerequisite for the effectiveness of a premarital agreement. As a consequence, the act does not provide for a situation where persons live together without marrying. In that situation, the parties must look to the other law of the jurisdiction (see Marvin v. Marvin, 18 Cal. 3d 660 (1976); judgment after trial modified, 122 Cal. App. 3d 871 (1981)).
SECTION 5. AMENDMENT, REVOCATION. After marriage, a premarital agreement may be amended or revoked only by a written agreement signed by the parties. The amended agreement or the revocation is enforceable without consideration.
This section requires the same formalities of execution for an amendment or revocation of a premarital agreement as are required for its original execution (cf. Estate of Gillilan v. Estate of Gillilan, 406 N.E. 2d 981 (Ind. App. 1980) (agreement may be altered by subsequent agreement but not simply by inconsistent acts).
SECTION 6. ENFORCEMENT.
(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:
(1) that party did not execute the agreement voluntarily; or
(2) the agreement was unconscionable when it was executed and, before execution of the agreement, that party:
(i) was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
(ii) 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
(iii) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
(b) If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility.
(c) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.