Appendix B (1) State Law Summary—premaritalagreements

• Library: Premarital Agreements: Drafting and Negotiation (ABA) (2017 Ed.)

Appendix B(1)

State Law Summary—PremaritalAgreements

State	UPAA1	UPMAA	Post-Divorce Spousal Support Waiver Enforceable	2d Look at Divorce	Key Statutes and Cases
Alabama			Y		Ala. Code § 8-9-2(4) (2015) (Statute of Frauds; agreement on consideration of marriage must be in writing); § 43-8-72 (right of election of surviving spouse, homestead allowance, exempt property and family allowance can be waived by written contract); Brown v. Brown, 26 So. 3d 1222 (Ala. 2009) (premarital agreement must be fair or be entered into voluntarily with competent independent advice and knowledge of financial affairs); Barnhill v. Barnhill, 386 So. 2d 749, 751 (Ala. Civ. App.), cert. denied, 386 So. 2d 752 (Ala. 1980) (same); Ex parte Walters, 580 So. 2d 1352 (Ala. 1991) (alimony waiver enforceable; attorney fees may be waived unless inequitable and unjustified); Woolwine v. Woolwine, 549 So. 2d 512 (Ala. Civ. App. 1989) (alimony waiver upheld; trial court had discretion to award attorney fees); Klyce v. Klyce, 429 So. 2d 1081 (Ala. Civ. App. 1983) (waiver of legal fees must be express).
Alaska			Y	Y	Alaska .Stat. § 13.12.213 (2015) (rights of surviving spouse can be waived before marriage by written agreement executed voluntarily and, if unconscionable, with fair and reasonable financial disclosure, adequate knowledge, or express waiver of disclosure); § 25.24.160(e) (equitable distribution statute; court distributes property not disposed of in community property agreement made under Alaska Stat. § 34.77.010 et seq.); § 34.77.030 (community property agreement may classify property as individual property or as community property); § 34.77.090 (com-munity property agreement may determine property rights at death or divorce; premarital community property agreement not enforceable if executed involuntarily, or unconscionable and no financial disclosure, express waiver or constructive knowledge); Brooks v. Brooks, 733 P.2d 1044 (Alaska 1987) (premarital agreement generally enforceable if properly procured; not enforceable at divorce where facts and circumstances changed since execution); Beal v. Beal, 88 P.3d 104 (Alaska 2004) (spousal support can be waived in premarital agreement; interim support is waivable; waiver must be express).
Arizona	Y		Y		Ariz. Rev. Stat. §§ 25-201-25205 (2015) (UPAA, eff. 3.25.91) (criteria for award of alimony over waiver is welfare eligibility); § 14-2207 (surviving spouse rights may be waived by written contract before marriage; same validity standards as UPAA); Smith v. Tang, 412 P.2d 697 (Ariz. 1966) (agreement to waive widow's allowance must be clear and explicit to be valid); Schlaefer v. Financial Mgt. Svc. Inc., 196 Ariz. 336, 996 P.2d 745 (2000) (parties can prospectively abrogate community debt in premarital agreement; creditor of one spouse has no claim against other spouse for payment of debt incurred during marriage).
Arkansas	Y+		Y		Ark. Code Ann. §§ 9-11-401-911-413 (2015) (UPAA, eff. 8.20.87) (requires actual advice of counsel to waive financial disclosure; criteria for award of spousal support over waiver is welfare eligibility); § 9-11-301 (marriage contract must be in writing and acknowledged by parties or witnessed by one or more subscribing witnesses); Medlock v. Fort Smith Service Finance Corp., 803 S.W.2d 930 (Ark. 1991) (W not liable for necessaries under statute).
California	Y+		Y	Y (only as to spousal support)	Cal. Fam. Code §§ 1610-1617 (2015) (UPAA, eff. 1.1.86; amended, eff. 1.1.02); § 1615(c) (agreement deemed involuntary unless party represented by counsel or advised of right and expressly waived in a signed writing; no less than 7 days between receipt of agreement with advice to seek independent counsel and execution; unrepresented party fully informed in writing of terms and effect and rights and obligations waived, proficient in language of agreement and explanation of rights; explanation delivered to party prior to signing, and signed acknowledgment of receipt; agreement and separate waivers not signed under duress, fraud, undue influence, or lack of capacity); § 1612 (support provision, including waiver, not enforceable if party against whom enforcement is sought [1] did not have advice of independent counsel or [2] unconscionable at divorce); Prob. Code § 147 (parties may waive rights at death in premarital agreement); Fam. Code § 720 (spouses contract obligation of mutual support); Cal. Fam. Code § 4300 (subject to certain other statutory provisions, person shall support spouse); Cal. Fam. Code § 4301 (married person shall support spouse while living together); In re Marriage of Pendleton and Fireman, 99 Cal. Rptr. 2d 278, 5 P.3d 839 (2000) (alimony waiver not per se unenforceable); Borelli v. Brusseau, 16 Cal. Rptr. 2d 16 (Cal. Ct. App. 1993) (same).
Colorado		Y	Y	Y (only as to spousal support)	Colo. Rev. Stat. §§ 14-2-301-142-313 (2015) (Uniform Premarital and Marital Agreements Act (UPMAA), eff. 7.1.14) (parties may contract re disposition of property at death or divorce; parties may contract re support and attorney's fees provided not unconscionable at enforcement); § 14-2-309(1) (premarital agreement must be voluntary, with access to counsel, or notice of rights, and after adequate financial disclosure); § 15-11-213 (affirmation, modification, or waiver of marital right or obligation is only enforceable if contained in premarital or marital agreement compliant with UPMAA); Newman v. Newman, 653 P.2d 728 (Colo. 1982) (unconscionability not ground to void premarital agreement as a whole); In re Marriage of Dechant, 867 P.2d 193 (Colo. Ct. App. 1993) (support waiver unconscionable if results in spouse having insufficient property to meet reasonable needs; fee waiver may become unconscionable); In re Marriage of Ikeler, 161 P.3d 663 (Colo. 2007) (court can review attorney fee waiver for unconscionability at divorce); In re Marriage of Christen, 899 P.2d 339 (Colo. Ct. App. 1995) (wealthier spouse sought finding of invalidity; court is obligated to enforce clear term of premarital agreement requiring loser to pay fees).
Connecticut	Y+		Y	Y	Conn. Gen. Stat. §§ 46b-36a to 46b-36j (2016) (UPAA, eff. 10.1.95) (premarital agreement must be voluntary, made after full disclosure, with opportunity to consult independent counsel, and not unconscionable at execution or enforcement; criteria for award of spousal support over waiver is welfare eligibility); § 46b-37 (spouses have mutual duty of support during marriage; both spouses liable for necessaries including medical); McHugh v. McHugh, 181 Conn. 482, 436 A.2d 8 (1980) (provision waiving right to support during ongoing marriage violates public policy) (dicta); Scharer v. Scharer, 2001 Conn. Super. Lexis 2140 (premarital agreement waiving post-divorce alimony does not preclude award payable while validity of agreement is litigated); Montoya v. Montoya, 91 Conn. App. 407, 881 A.2d 319 (2005), rev'd in part on other grounds, 280 Conn. 605, 909 A.2d 947 (2006) (premarital agreement fee waiver and prevailing party provisions were enforceable where agreement valid).
Delaware	Y		Y		13 Del. Code Ann. §§ 321-328 (2016) (UPAA, eff. 9.1.96) (statute silent on criteria for award of spousal support over waiver); 12 § 905 (spouses can waive right of election by written contract before marriage); § 13-502 (duty to support spouse rests on other spouse).
District of Columbia	Y		Y		D.C. Code Ann. §§ 46-501-46-510 (2016) (UPAA, eff. 2.9.96) (criteria for award of spousal support over waiver is welfare eligibility) § 16-910 (parties can exclude property from marital estate by valid agreement); § 46-601 (b)(2) (2016) (both spouses liable on debt for necessaries; § 16-916 (party can be ordered to support needy spouse).
Florida	Y		Y		Fla. Stat. Ann. § 61.079 (2015) (UPAA, eff. 10.1.07); § 61.079 (7) (a) (premarital agreement unenforceable if not signed voluntarily, or was the product of fraud, duress, coercion or overreaching, or unconscionable and no financial disclosure or effective waiver); § 732.702 (rights of surviving spouse can be waived in contract before marriage signed in presence of two witnesses; no consideration required except execution; no financial disclosure required); Posner v. Posner, 237 So. 2d 186 (Fla. Dist. Ct. App. 1970) (parties can contract re post-divorce support); Belcher v. Belcher, 271 So. 2d 7 (Fla. 1972) (parties may not contract re pre-divorce support; premarital agreement provisions for spouse are factor in determining need but not conclusive); Lashkajani v. Lashkajani, 911 So. 2d 1154 (Fla. 2005) (prevailing party clause enforceable when challenge to validity lacked merit; distinction between fees incurred to protect agreement itself, and fees incurred while litigation is pending, which is a form of nonwaivable temporary spousal support); Lord v. Lord, 993 So.2d 562 (Fla. Ct. App. 2008) (long-standing policy against enforcement of attorney fee waiver intact); Blanton v. Blanton, 654 So. 2d 1240 (Fla. Dist. Ct. App. 1995) (duty of support during marriage includes fees incurred to challenge premarital agreement validity when normal criteria for award met; abuse of discretion not to award where result of premarital agreement validity was harsh).
Georgia			Y	Y	Ga. Code Ann. §§ 19-3-62-193-66 (2015) (parties can contract re future settlement upon one spouse); § 19-3-63(5)(marriage contract made in contemplation of death must be attested by 2 witnesses); § 13-5-30 (Statute of Frauds; premarital agreement must be in writing); Sullivan v. Sullivan, 286 Ga. 53, 684 S.E.2d 861 (2009) (premarital agreement provisions for rights at death not valid without two witnesses; statutory requirement strictly construed); Scherer v. Scherer, 249 Ga. 635, 292 S.E.2d 662 (1982) (premarital agreement must be executed voluntarily after...