PREMARITAL AGREEMENTS
State Law Breakdown

The Uniform Premarital Agreement Act, which has been adopted in 27 states (and introduced in the legislatures of 4 more states as of 2009), allows the parties to select which state's laws they desire to control their agreement. If either of you lives in, or you plan to live in or shall be married in, one of the below states which have adopted the Uniform Premarital Agreement Act, it is suggested that you select that state. The advantage of selecting one of these states is that they have a comprehensive statutes covering most of the issues arising with the enforcement of prenuptial agreements. In states other than those that have enacted the uniform act, one is forced to search through the case law, which can change daily, to determine what the law is and, for this reason, we can make no solid statements to our users regarding the enforceability of prenuptial agreements in states other than the 27 listed directly below:

Arizona	Arkansas	California
Connecticut	Delaware	District of Columbia
Hawaii	Idaho	Illinois
Indiana	Iowa	Kansas
Maine	Montana	Nebraska
Nevada	New Jersey	New Mexico
North Carolina	North Dakota	Oregon
Rhode Island	South Dakota	Texas
Utah	Virginia	Wisconsin
Florida

California. Although California has enacted the Uniform Premarital Agreement Act, it's version of the law makes it very difficult for individuals unrepresented by attorneys (at the time the agreement is entered into) to enforce a premarital agreement. It also mandates a seven day waiting period between the time the agreement is first presented to a party and the time it is actually signed. California Family Law Code Section 1615(c) requires all of the following elements for there to be an enforceable premarital agreement:

1. The party against whom enforcement is sought was represented by independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel.
2. The party against whom enforcement is sought had not less than seven calendar days between the time that party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed.
3. The party against whom enforcement is sought, if unrepresented by legal counsel, was fully informed of the terms and basic effect of the agreement as well as the rights and obligations he or she was giving up by signing the agreement, and was proficient in the language in which the explanation of the party's rights was conducted and in which the agreement was written. The explanation of the rights and obligations relinquished shall be memorialized in writing and delivered to the party prior to signing the agreement. The unrepresented party shall, on or before the signing of the premarital agreement, execute a document declaring that he or she received the information required by this paragraph and indicating who provided that information.
4. The agreement and the writings executed pursuant to paragraphs (1) and (3) were not executed under duress, fraud, or undue influence, and the parties did not lack capacity to enter into the agreement.

In light of the foregoing statute, each party to a California prenuptial agreement should have the agreement reviewed by an independent attorney at least seven days prior to the time the agreement is to be executed. Note: The California Bar Association must be powerful lobby in Sacramento.

Also, California's version of the uniform act omitted a direct statement on the issue of whether the parties to a prenuptial agreement may limit spousal support (also called "alimony") in a subsequent divorce. In the case of Pendleton v. Fineman, S.Ct. Cali. 8/21/00, the Supreme Court of California held that the validity of waivers of spousal support in prenuptial agreements was left to the courts by the legislature and, furthermore, that such agreements are not automatically void as against public policy. The bottom line is that waivers of spousal support are legal in California; however, they are closely reviewed by the courts to ensure that neither side obtained an unfair advantage over the other. If you desire additional assurance that your agreement will be enforced by the courts on the issue alimony in California, we recommend that both parties have the agreement reviewed by separate attorneys prior to signing.

Court's Opinion in Pendleton v. Fineman, S.Ct. Cali. 8/21/00

Florida. Although Florida enacted the Uniform Act, it added one twist.

Title XLII, Chapter 732, Part VII, § 732.702 Waiver of spousal rights.
(1) The rights of a surviving spouse to an elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, and preference in appointment as personal representative of an intestate estate or any of those rights, may be waived, wholly or partly, before or after marriage, by a written contract, agreement, or waiver, signed by the waiving party in the presence of two subscribing witnesses.

Thus, if the premarital agreement effects the rights of a suriving spouse then it must be it must be executed before two subscribing witnesses like a last will.

Remaining States. As to the remaining states, we divide them into two categories: (a) those with statutes or case law that, although not following the uniform law adopted by the other 27 states, do allow parties to enter into prenuptial agreements and (b) states with no clear statutes or case law on the matter.

States with statutes or case law allowing for prenuptial agreements in a form other than the uniform act:

1. Alabama: Has a statute stating that the prenuptial agreement must be in writing and recognizing that rights under Last Wills can be waived by a premarital agreement;
2. Colorado: Statute is close to the uniform act although the courts are given wider latitude in deciding whether to enforce a prenuptial agreement than is the case with the uniform act;
3. Georgia: No statute although allowed at common law;
4. Kentucky: statute allowing for prenuptial agreements similar to the uniform act;
5. Louisiana: statute for prenuptial agreements is substantially different than uniform act--it is unlawful to limit alimony by agreement, the agreement must be notarized, parties need court approval to modify agreement after marriage;
6. Maryland: statute requires prenuptial agreements to be signed writing but statute is silent on all other issues;
7. Massachusetts: statute requires prenuptial agreements to be signed writing but statute is silent on all other issues;
8. Michigan: statute requires prenuptial agreements to be signed writing but is silent on all other issues;
9. Minnesota: agreement must be notarized and attested by 2 witnesses, statute allows limitations on marital property and spousal rights in probate;
10. Mississippi: statute requires prenuptial agreements to be signed writing but statute is silent on all other issues;
11. Missouri: agreement must be notarized or attested by 1 or more witnesses but statute is silent on all other issues;
12. Nevada: comprehensive statute similar to uniform act;
13. New Hampshire: statute authorizes prenuptial agreements but is silent on the issue of whether alimony can be modified;
14. New York: statute authorizes prenuptial agreements but is silent on all other issues;
15. Ohio: statute requires prenuptial agreements to be in writing but statute is silent on all other issues;
16. Oklahoma: statute authorizes prenuptial agreements but statute is silent on all other issues;
17. Pennsylvania: no statute but allowed by case law although not clear on whether alimony can be modified;
18. Tennessee: has statute authorizing prenuptial agreements but courts are given broad discretion relative to their enforcement;
19. Texas: has statute authorizing prenuptial agreements and requiring that they be in writing but does not address many the issues including whether alimony may be restricted;
20. Washington State: prenuptial agreement not valid unless either (1) it reasonably and fairly provides for party not seeking its enforcement or (2) there was full disclosure of amount, character, and value of property involved and agreement was entered into voluntarily upon advice of independent counsel (stated another way: prenuptial agreements are not valid in Washington State unless each side was represented by an attorney or the agreement was fair to both sides;
21. West Virginia: statute authorizes prenuptials but the agreements can be voided on the basis of changed circumstances such as the birth of children from the marriage.

States with no statute nor case law allowing for prenuptial agreements:

1. Alaska: No prenuptial agreement statute;
2. South Carolina: No prenuptial agreement statute;
3. Vermont: No prenuptial agreement statute;
4. Wyoming: No prenuptial agreement statute.

In regard to states with no statutes nor case law, if you both live in one of these states and plan to marry in this state, it still will do no harm to execute a prenuptial agreement. We are only saying that we could find no controlling statute or case law allowing for prenuptial agreements. It very well may be that they are in fact enforceable. Please check with a family law attorney licensed in one of these states should you desire a definitive answer on the subject.

Postnuptial Agreements.