ULC

Why States Should Adopt UPAA

The common law treated couples contemplating marriage as it does children, who must be protected by the rule that their contracts cannot be enforced.

But partners to a marriage? If they wished to organize their affairs, and plan ahead as responsible adults, the old rules prohibited them from doing so.

Even today, with premarital agreements recognized to some degree in almost every jurisdiction, the old rules haunt and inhibit responsible action. The law is still not clear on what may or may not be enforced. It remains confusing, vague and varies from state to state. Agreements executed in one state, even with the most competent legal advice, may be invalid elsewhere.

Adoption of the Uniform Premarital Agreement Act (UPAA) by all states would assure couples who wish to protect individual interests when entering marriage, that properly executed agreements would be valid and binding everywhere.

THE UPAA FOLLOWS ACCEPTED STANDARDS

The UPAA makes no radical departure from the developing common law; indeed, it incorporates the best principles of existing state laws on premarital agreements. For example, the act requires that premarital agreements be in writing and signed by both parties; and that they be freely and voluntarily executed. The act also provides, in accordance with the best established practice, that potential spouses have adequate knowledge of each other's property and finances, or at least have the opportunity to become aware of them before agreements concerning property and finances can be enforced. If one party conceals such information, the agreement will not be enforceable.

THE UPAA PROVIDES A FLEXIBLE FRAMEWORK

Under the UPAA, couples can agree to almost anything from division of property at divorce to the division of household responsibilities. Nothing is excluded from the scope of the agreement, except those matters that are criminal or unconscionable. Given such latitude, the act promotes responsible planning and encourages prospective spouses to consider in advance a wide spectrum of issues that may affect their marriage.

THE UPAA PROVIDES UNIFORMITY

Many American couples live in several states in the course of their marriage. A premarital agreement executed in Delaware may need to be enforced in New Mexico, by a couple that has property in Florida and Ohio. If the Uniform Premarital Agreement Act is adopted everywhere, couples will not have to worry about renegotiating their agreement whenever they move to a new jurisdiction.

Moreover, courts in every state will be able to apply the same standards in determining an agreement's validity, regardless of where it was executed.

It is time that responsible partners to a marriage be treated by the law as adults, not as inexperienced and vulnerable children. Uniform passage of the UPAA will enable couples wishing to organize their affairs by a contract to do so through a valid and binding instrument of law.