Prenups can be a creative way to predetermine how property and debt will be dealt with at divorce or death.
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. Premarital agreements are used in this way usually by people who marry later in life or in second or subsequent marriages.
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 agreements 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 agreements and is available to guide you and advise you when contemplating drawing up a prenuptial agreement or signing a prenuptial agreement.
emy a. cordano
I am Emy Cordano, a family law attorney based in Salt Lake City. I concentrate my practice on divorce and family law matters; I am not a general practice lawyer. Family law is all I do. Here you'll find additional articles and advice that I make available to anyone facing family law issues.
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