Premarital Agreement: On behalf of Emy Cordano
Prenups can be a creative way to predetermine how property and debt will be dealt with at divorce or death.
It may take away some of the romance to consider the legal issues of property and money raised by marriage. After all, ending a marriage requires a court order to divide property and order alimony, as well as to decide matters concerning children. State laws impose rules for judges to apply when they make these decisions, and state laws also establish property rights for spouses who survive their partners’ deaths.
The premarital agreement also called a prenuptial or antenuptial agreement, or prenup for short is a vehicle for spouses to arrange their financial affairs and matters of property ownership as they see fit before marriage, in essence by binding contract.
Prenups are often used to ensure that assets (or debts) a spouse brings into a marriage will not go to the other spouse upon divorce or death, but rather to an outside party, usually children from a previous relationship. A premarital agreement is used in this way usually by people who marry later in life or in second or subsequent marriages.
Another common use of a prenuptial agreement is to predetermine how property will be divided between spouses at divorce or to set the terms of or to waive spousal support or alimony. These issues often arise when one of the parties is relatively wealthy as compared to the other.
Utah adopted its version of the Uniform Premarital Agreement Act in 1994. Utah’s UPAA is straightforward and fairly bare-bones as compared with the more complex prenup laws of some other non-UPAA states.
Some Of Utah’s Main Provisions:
- A premarital agreement is “an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage” that during marriage may be amended or revoked in writing.
- A prenup must be in writing and signed by both parties.
- A prenuptial agreement is enforceable without consideration, meaning the parties do not have to pay, give up or promise something in exchange for the terms as would be required for a basic contract to be valid.
- A premarital agreement may deal with many enumerated aspects of assets and liabilities; property disposal at separation, divorce or death, or upon the occurrence or nonoccurrence of another event; spousal support (except a term that makes one spouse eligible for public assistance may be later ignored by a court); life insurance; choice of which state’s law governs; and “any other matter, including their personal rights and obligations” so long as it does not violate a criminal law or public policy.
- The parties may not limit child support, children’s health care expenses, insurance or child care coverage.
A prenup can be found unenforceable if one party did not execute it voluntarily; or if it was fraudulent and one party did not reasonably disclose his or her assets and debts, the other did not waive disclosure and could not have had adequate knowledge.
The enforcement section of the UPAA was interpreted in April 2015 by the Court of Appeals of Utah in Keyes v. Keyes. The Keyes court emphasized that both fraud and the three aspects of nondisclosure must all be shown for the agreement to be unenforceable. Showing that the three nondisclosure requirements were met does not equal fraud, which must be separately proven.
The laws involving prenups are complicated and anyone in Utah who wants to draft one, is being presented with one or is facing divorce with a pre-existing prenup should seek experienced legal counsel for guidance, advice and representation.
In Salt Lake City, Emy A. Cordano, Attorney at Law, is an expert in premarital agreement and is available to guide you and advise you when contemplating drawing up a prenuptial agreement or signing a prenuptial agreement.