The Uniform Premarital and Marital Agreements Act

An old joke holds that there are two responses that are correct for any legal question. The first is, “It depends.” The second is, “The answer is different in Louisiana.”

Those responses may be all a matrimonial practitioner can offer to basic questions about a pre-nuptial agreement: “Is our agreement binding?” “Do I have to disclose all my assets?” “Can we sign it on the morning of the wedding?”

The answers to those questions depend, among many other factors, on the jurisdiction whose law will be used to determine whether the agreement is enforceable. It can be difficult ' if not impossible ' to determine which jurisdiction that will be. The agreement could be tested in the courts of any state where an action for divorce might be filed. Even at the time of marriage, the practitioner could have several such jurisdictions to consider. For example, the couple might have homes in two different states; they might sign their agreement in a third state and celebrate their marriage in a fourth. To craft an enforceable agreement, a practitioner must consider the choice-of-law rules and perhaps the substantive laws of all those four states. Even so, a divorce action might be filed decades later, at which time the parties could be living, and therefore litigating, in a fifth state that neither of them could have anticipated when they married. (The even more serious questions faced by couples who cannot say in what nation they will live are beyond the scope of this article.)

The Genesis of the Uniform Acts

To solve those problems, the Uniform Law Commission (ULC, also known as the National Conference of Commissioners on Uniform State Laws) has proposed a series of uniform acts that specify when premarital agreements will and will not be enforceable.

In 1983, the ULC promulgated the Uniform Premarital Agreement Act (UPAA). In 2012, it revised UPAA to produce the Uniform Premarital and Marital Agreements Act (UPMAA). If every state's legislature adopted a uniform statute, then practitioners could answer questions like those at the start of this article without worrying about where the validity of the agreement might be adjudicated.

Three factors, however, limit the drive for uniformity. First and most obvious, not every state has adopted the UPMAA or even the UPAA. At this writing, according to the ULC's website, www.uniformlaws.org, the UPAA is in force in 25 states and the District of Columbia, and the UPMAA in only two, Colorado and North Dakota.

The second source of variation is that even states that the ULC lists as having adopted the UPAA or UPMAA have often enacted legislation different from the ULC's “uniform” recommendations. The third part of this article will cite a few examples.

The final and most subtle source of variation is that even where legislation is uniform, different states' courts can apply it in different ways. In particular, states' doctrines of fraud and duress make agreements unenforceable despite uniform statutory language that implies the agreements are enforceable. To craft an effective agreement, therefore, a practitioner may have to review not only statutes, but also case law from several states.

The UPAA, the UPMAA and New York Law

This article will compare key provisions of the UPAA, the UPMAA, and the law of New York, the largest state that has not adopted either uniform act. The differences are detailed in a chart in Part Three of this article.

Agreements regulated: As their names suggest, the Uniform Premarital Agreement Act applies only to agreements between parties who are not yet married but intend to be; the Uniform Premarital and Marital Agreements Act also governs “marital agreements” between parties who are already married and intend to remain so, to the extent those agreements concern rights arising from the marriage. New York's Domestic Relations Law ' 236B(3) goes further than either uniform act. The New York law also governs agreements between spouses who are separating or otherwise do not intend to remain married.

Topics on which an agreement is not enforceable: Each statute also specifies one or more things a covered agreement cannot do. The only limitation explicit in the UPAA is that an agreement cannot reduce child support. Such a provision would injure the child, who is not a party to the agreement. An agreement governed by the UPAA can, however, increase child support beyond the level a court would otherwise set. The doctrine that an agreement cannot control child custody, while widespread, does not appear in the text of the UPAA.

The UPMAA retains the ban on decreasing child support. It adds that an agreement regarding physical or legal custody, access, or visitation is not binding. Also, an agreement subject to the UPMAA may not limit remedies for domestic violence victims, modify the grounds for legal separation or divorce, or penalize a party for seeking separation or divorce in court.

In New York, statutes and case law combine to create a broader list of things that cannot be done by agreement. Not only are agreements to set custody arrangements or reduce child support not binding, agreements to increase child support are not binding either. Courts can thus set child support either above or below the level to which the parties agreed. Nor is a waiver of attorneys' fees enforceable as applied to fees for litigating child custody and support. Here, New York differs critically from the uniform acts, which allow parties to waive attorneys' fees for litigating any matter. One New York court even refused to enforce a premarital agreement waiving attorneys' fees to litigate whether the agreement's maintenance provisions were unconscionable. Anonymous v. Anonymous , 123 A.D.3d 581, 999 N.Y.S.2d 386 (1st Dep't 2014). Finally, parties cannot agree to divorce or to procure grounds for divorce.

Formalities required: New York also requires more formalities to establish an agreement than the uniform acts. The UPAA requires only that an agreement be in writing and signed by the parties. The UPMAA adds other requirements designed to allow electronic agreements and even electronic signing. New York, however, requires agreements to be written and signed with the same formality needed to record a deed. Generally that requires either a witness or a notary for each signature. New York's highest court recently refused to enforce a premarital agreement because the notary's certificate for one signature omitted one key phrase of boilerplate. Galetta v. Galetta , 21 N.Y.3d 186, 991 N.E.2d 684 (2013).

Notices required: The UPMAA puts unique demands on agreements by requiring that unrepresented parties receive a notice in plain language of the rights they are modifying or waiving. The UPAA imposed no such requirement. The UPMAA requires, however, only a very general notice. It specifies that a notice in substantially the standard form will be effective, and that form has language such as, “If you sign this agreement, you may be ' [g]iving up your right to money and property if your marriage ends.” That, apparently, is notice that the agreement may limit, or entirely waive, post-divorce spousal support and equitable distribution or a share of community property.

New York law requires a very different type of notice. It must be very detailed, and it must be given to represented and unrepresented parties alike, but it applies only to two narrow topics: child support after divorce, and spousal support while a divorce action is pending (referred to as “temporary maintenance”). New York law sets presumptive amounts for temporary maintenance and post-divorce child support, based on the parties' income. An effective agreement must recite what the presumptive amounts are, how they were calculated, whether the parties have deviated from the presumptive amounts, and if so why. For child support, further recitations regarding the available enforcement mechanisms are required. See the article infra by Thomas Elliot.

The second part of this article will discuss other differences between New York law and the UPMAA/UPAA.

Matthew A. Feigin is an attorney at Katsky Korins LLP. The author would like to thank Marcy L. Wachtel for her review, and Michael A. Mosberg for encouraging him to research the UPMAA.

An old joke holds that there are two responses that are correct for any legal question. The first is, “It depends.” The second is, “The answer is different in Louisiana.”

Those responses may be all a matrimonial practitioner can offer to basic questions about a pre-nuptial agreement: “Is our agreement binding?” “Do I have to disclose all my assets?” “Can we sign it on the morning of the wedding?”

The answers to those questions depend, among many other factors, on the jurisdiction whose law will be used to determine whether the agreement is enforceable. It can be difficult ' if not impossible ' to determine which jurisdiction that will be. The agreement could be tested in the courts of any state where an action for divorce might be filed. Even at the time of marriage, the practitioner could have several such jurisdictions to consider. For example, the couple might have homes in two different states; they might sign their agreement in a third state and celebrate their marriage in a fourth. To craft an enforceable agreement, a practitioner must consider the choice-of-law rules and perhaps the substantive laws of all those four states. Even so, a divorce action might be filed decades later, at which time the parties could be living, and therefore litigating, in a fifth state that neither of them could have anticipated when they married. (The even more serious questions faced by couples who cannot say in what nation they will live are beyond the scope of this article.)

The Genesis of the Uniform Acts

To solve those problems, the Uniform Law Commission (ULC, also known as the National Conference of Commissioners on Uniform State Laws) has proposed a series of uniform acts that specify when premarital agreements will and will not be enforceable.

In 1983, the ULC promulgated the Uniform Premarital Agreement Act (UPAA). In 2012, it revised UPAA to produce the Uniform Premarital and Marital Agreements Act (UPMAA). If every state's legislature adopted a uniform statute, then practitioners could answer questions like those at the start of this article without worrying about where the validity of the agreement might be adjudicated.

Three factors, however, limit the drive for uniformity. First and most obvious, not every state has adopted the UPMAA or even the UPAA. At this writing, according to the ULC's website, www.uniformlaws.org, the UPAA is in force in 25 states and the District of Columbia, and the UPMAA in only two, Colorado and North Dakota.

The second source of variation is that even states that the ULC lists as having adopted the UPAA or UPMAA have often enacted legislation different from the ULC's “uniform” recommendations. The third part of this article will cite a few examples.

The final and most subtle source of variation is that even where legislation is uniform, different states' courts can apply it in different ways. In particular, states' doctrines of fraud and duress make agreements unenforceable despite uniform statutory language that implies the agreements are enforceable. To craft an effective agreement, therefore, a practitioner may have to review not only statutes, but also case law from several states.

The UPAA, the UPMAA and New York Law

This article will compare key provisions of the UPAA, the UPMAA, and the law of New York, the largest state that has not adopted either uniform act. The differences are detailed in a chart in Part Three of this article.

Agreements regulated: As their names suggest, the Uniform Premarital Agreement Act applies only to agreements between parties who are not yet married but intend to be; the Uniform Premarital and Marital Agreements Act also governs “marital agreements” between parties who are already married and intend to remain so, to the extent those agreements concern rights arising from the marriage. New York's Domestic Relations Law ' 236B(3) goes further than either uniform act. The New York law also governs agreements between spouses who are separating or otherwise do not intend to remain married.

Topics on which an agreement is not enforceable: Each statute also specifies one or more things a covered agreement cannot do. The only limitation explicit in the UPAA is that an agreement cannot reduce child support. Such a provision would injure the child, who is not a party to the agreement. An agreement governed by the UPAA can, however, increase child support beyond the level a court would otherwise set. The doctrine that an agreement cannot control child custody, while widespread, does not appear in the text of the UPAA.

The UPMAA retains the ban on decreasing child support. It adds that an agreement regarding physical or legal custody, access, or visitation is not binding. Also, an agreement subject to the UPMAA may not limit remedies for domestic violence victims, modify the grounds for legal separation or divorce, or penalize a party for seeking separation or divorce in court.

In New York, statutes and case law combine to create a broader list of things that cannot be done by agreement. Not only are agreements to set custody arrangements or reduce child support not binding, agreements to increase child support are not binding either. Courts can thus set child support either above or below the level to which the parties agreed. Nor is a waiver of attorneys' fees enforceable as applied to fees for litigating child custody and support. Here, New York differs critically from the uniform acts, which allow parties to waive attorneys' fees for litigating any matter. One New York court even refused to enforce a premarital agreement waiving attorneys' fees to litigate whether the agreement's maintenance provisions were unconscionable. Anonymous v. Anonymous , 123 A.D.3d 581, 999 N.Y.S.2d 386 (1st Dep't 2014). Finally, parties cannot agree to divorce or to procure grounds for divorce.

Formalities required: New York also requires more formalities to establish an agreement than the uniform acts. The UPAA requires only that an agreement be in writing and signed by the parties. The UPMAA adds other requirements designed to allow electronic agreements and even electronic signing. New York, however, requires agreements to be written and signed with the same formality needed to record a deed. Generally that requires either a witness or a notary for each signature. New York's highest court recently refused to enforce a premarital agreement because the notary's certificate for one signature omitted one key phrase of boilerplate. Galetta v. Galetta , 21 N.Y.3d 186, 991 N.E.2d 684 (2013).

Notices required: The UPMAA puts unique demands on agreements by requiring that unrepresented parties receive a notice in plain language of the rights they are modifying or waiving. The UPAA imposed no such requirement. The UPMAA requires, however, only a very general notice. It specifies that a notice in substantially the standard form will be effective, and that form has language such as, “If you sign this agreement, you may be ' [g]iving up your right to money and property if your marriage ends.” That, apparently, is notice that the agreement may limit, or entirely waive, post-divorce spousal support and equitable distribution or a share of community property.

New York law requires a very different type of notice. It must be very detailed, and it must be given to represented and unrepresented parties alike, but it applies only to two narrow topics: child support after divorce, and spousal support while a divorce action is pending (referred to as “temporary maintenance”). New York law sets presumptive amounts for temporary maintenance and post-divorce child support, based on the parties' income. An effective agreement must recite what the presumptive amounts are, how they were calculated, whether the parties have deviated from the presumptive amounts, and if so why. For child support, further recitations regarding the available enforcement mechanisms are required. See the article infra by Thomas Elliot.

The second part of this article will discuss other differences between New York law and the UPMAA/UPAA.

Matthew A. Feigin is an attorney at Katsky Korins LLP. The author would like to thank Marcy L. Wachtel for her review, and Michael A. Mosberg for encouraging him to research the UPMAA.