The Uniform Premarital Agreement Act: taking Casto to a new level for prenuptial agreements.

• Author: Inkeles, Doreen

Prenuptial agreements have been in existence for over 200 years. And as such they have been litigated for over 200 years. We, as attorneys, well know that having a prenuptial or premarital agreement unfortunately does not mean that one can avoid the courtroom. About Ivana's challenge to Donald Trump's prenuptial agreement, Trump wrote, "[w]e needed a bus to get Ivana's lawyers to court. It was a disaster, but I had a solid prenup, and it held up." (1)

Initially, premarital agreements were made for purposes of settling property rights and were upheld provided proper financial disclosure had been made. (2) In 1972, in Posner v. Posner, 257 So. 2d 530 (Fla. 1972), the Florida Supreme Court upheld a prenuptial agreement containing spousal support provisions which had previously been deemed void as against public policy. (3) In 1983, the Uniform Premarital Agreement Act (UPAA) was drafted in response to concerns over the lack of uniformity as to validity and enforcement of these contracts during a time when the demand for premarital agreements was on the rise. (4) Twenty-five states and the District of Columbia have adopted the UPAA, although Florida has not yet been one of them--but Florida is apparently closer than one would think. In order to codify existing Florida law, a version of the UPAA is anticipated to be presented to the legislature in May 2007. The following is a discussion of what the Florida version of the UPAA will look like and how the material aspects of the act reflect and perhaps change Florida case law and embody public policy.

Section one of the Florida version of the UPAA is definitional. Under the act, "'Premarital Agreement' means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage." (5)

"This [act] takes effect and applies to any premarital agreement executed on or after that date." (6) (That is, the date after the law would go into effect). At this point, the act would clearly only apply to true premarital agreements unless and until the legislature or the courts expand the definition to include postnuptial agreements. For example, New Jersey is strict and the act only apples to prenuptial agreements, (7) whereas Virginia more liberally applies the act to all property settlement agreements. (8)

Since property distribution is one main focus of the act, there is of course, a definition of property contained within it. The definition, however, as set forth in the draft propounded by the National Conference of the Commission on Uniform State Law (NCCUSL) has a fairly generic definition of property: "An interest, present or future, or equitable, vested or contingent, in real or personal property, including income and earnings." Florida is planning to adopt its own definition of property as specifically set forth in F.S. [section]61.075(5), defining marital and nonmarital assets and liabilities as those which include:

1. Assets acquired and liabilities incurred during the marriage, individually by either spouse or jointly by them;

2. The enhancement in value and appreciation of nonmarital assets resulting either from the efforts of either party during the marriage or from contribution to or expenditure thereon of marital funds or other forms of marital assets, or both;

3. Interspousal gifts during the marriage;

4. All vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing annuity, deferred compensation, and insurance plans and programs, and

5. All real property held by the parties as tenants by the entireties, whether acquired prior to or during the marriage, shall be presumed to be a marital asset.... (9)

   F.S. [section]61.075(5) also defines "non-marital" assets and liabilities as:

1. Assets acquired and liabilities incurred by either party prior to the marriage, and assets acquired and liabilities incurred in exchange for such assets and liabilities;

2. Assets acquired separately by either party by noninterspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets;

3. All income derived from nonmarital assets during the marriage unless the income was treated, used, or relied upon by the parties as a marital asset;

4. Assets and liabilities excluded from marital assets and liabilities by valid written agreement of the parties; and assets acquired and liabilities incurred in exchange for such assets and liabilities; and

5. Any liability incurred by forgery or unauthorized signature of one spouse signing the name of the other spouse. (10)

   Section two of the act provides a premarital agreement must be in writing and signed by the parties. It is enforceable without consideration, other than the marriage itself. This question then becomes whether this section abrogates the Florida case law which recognizes the enforceability of oral prenuptial agreements in two instances: first, where they are fully performed by both parties, (11) and second, where the contract is agreed upon prior to the marriage, but the writing is not prepared until after the marriage. (12)

   Section three of the act, which deals with actual content, provides parties to a premarital agreement may contract with respect to:

1. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;

2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;

3. The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;

4. The establishment, modification, or elimination of spousal support;

5. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;

6. The ownership rights in and disposition of the death benefit from a life insurance policy;

7. The choice of law governing the construction of the agreement; and

8. Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty. (13)

   In general, the list is intended to be illustrative as opposed to restrictive to the items enumerated. (14) Furthermore, the right to child support "may not be adversely affected by a premarital agreement." (15)...