Editing Prenuptial agreement (section)

===North America===
====Canada====
Prenuptial agreements in Canada are governed by provincial legislation. Each province and territory in Canada recognize prenuptial agreements. For instance, in Ontario, prenuptial agreements are called marriage contracts and they are recognized by section 52 of the Family Law Act.<ref>{{cite web|title=Prenuptial Agreements by Province|url=http://www.prenup.ca/provinces/|access-date=1 July 2016}}</ref>

====United States====
In the United States, prenuptial agreements are recognized in all fifty states and the District of Columbia, and they are enforceable if prepared in accordance with state and federal law requirements. It has been reported that the demand for prenuptial agreements in the United States has increased in recent years, particularly among [[Millennials|millennial]] couples.<ref>{{Cite news|url=https://www.cnbc.com/2019/01/10/bezos-divorce-highlights-usefulness-of-prenuptial-agreements.html|title=Jeff Bezos didn't have a prenup. But maybe you should|last=Grant|first=Kelli|date=January 10, 2019|publisher=CNBC|access-date=December 2, 2019}}</ref><ref>{{Cite news|url=https://www.businessinsider.com/why-sign-a-prenup-marriage-divorce-2018-9|title=Prenups aren't just for the rich or famous — more millennials are signing them before getting married, and you probably should too|last=Hoffower|first=Hillary |date=February 5, 2019|work=Business Insider|access-date=December 2, 2019}}</ref><ref>{{Cite news|url=https://www.nytimes.com/2018/07/06/smarter-living/millennial-prenup-weddings-money.html|title=The Rise of the Millennial Prenup|last=Shain|first=Susan|date=July 6, 2018|work=The New York Times|access-date=December 3, 2019}}</ref><ref>{{Cite news|url=https://www.huffpost.com/entry/millennials-cause-spike-prenups_l_5ca79e66e4b0dca033012757|title=Millennials Are The Reason For The Spike In Prenups|last=Gardner|first=Heather|date=April 8, 2019|work=Huffpost|access-date=December 3, 2019}}</ref> In a 2016 survey conducted by the American Academy of Matrimonial Lawyers (AAML), member attorneys reported seeing an increase, with the strongest interest in protecting increases in the value of the separate property, inheritances, and division of community property.<ref>{{cite web |title=Prenuptial Agreements on the Rise Finds Survey |url=http://old.aaml.org/about-the-academy/press/press-releases/prenuptial-agreements-rise-finds-survey |publisher=American Academy of Matrimonial Lawyers |access-date=3 December 2019}}</ref>

In the past, couples entered into premarital agreements with a level of uncertainty about their validity. Today, the presumptive validity and enforceability of such agreements in states that have adopted the [[Uniform Premarital Agreement Act|UPAA/UPMAA]] including Florida,<ref>{{cite web |title=Florida Statutes, Sec. 61.079. Premarital agreements |url=http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0061/Sections/0061.079.html |website=Florida Statutes |publisher=Florida Legislature |access-date=3 December 2019}}</ref> Virginia,<ref>{{cite web |title=Code of Virginia, Chapter 8. Premarital Agreement Act |url=https://law.lis.virginia.gov/vacode/title20/chapter8/ |website=Virginia Law |publisher=Commonwealth of Virginia |access-date=3 December 2019}}</ref> New Jersey,<ref>{{cite web |title=NJSA Sec. 37:2-31. Short Title, Uniform Premarital and Pre-Civil Union Agreement Act |url=http://njlaw.rutgers.edu/collections/njstats/showsect.php?title=37&chapter=2&section=31&actn=getsect |website=Rutgers Law School |access-date=3 December 2019}}</ref> and California,<ref>{{cite web |title=California Family Code, Article 2, Sec. 1610-1617, Premarital Agreements |url=https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=FAM&division=4.&title=&part=5.&chapter=2.&article=2 |website=California Legislative Information |publisher=State of California |access-date=3 December 2019}}</ref> is no longer in question.<ref>{{Cite book|title=Negotiating and Drafting Marital Agreements, Seventh Edition|last=Masterson|first=David|publisher=Virginia Law Foundation|year=2016|editor-last=Crouch|editor-first=Richard|pages=141}}</ref>

Currently, 28 States and the District of Columbia have adopted a version of the [[Uniform Premarital Agreement Act|Uniform Premarital Agreement Act (UPAA)]] or the updated Uniform Premarital Agreements Act (UPMAA). The UPAA was passed in 1983 by the [[Uniform Law Commission]] (ULC) to promote more uniformity and predictability between state laws relating to these contracts in an increasingly transient society. The UPAA was partly enacted to ensure that a prenup that was validly entered into in one state would be honored by the courts of another state where the couple might get a divorce. The UPMAA was subsequently promulgated in 2012 by the ULC to clarify and modernize inconsistent state laws and create a uniform approach to all prenuptial agreements and postnuptial agreements that:

# Requires marital agreements to be in writing and declares them to be enforceable without consideration, modernizing existing state laws;
# Offers couples a flexible framework for premarital agreements that promote responsible planning and informed decision-making; and
# Provides courts in every state a framework for determining an agreement's validity, regardless of where it was executed.<ref>''Why States Should Adopt the Uniform Premarital and Marital Agreements Act'', 2012, Uniform Law Commission, National Conference of Commissioners on Uniform State Laws.</ref>

The laws enacted by states adopting the UPAA/UPMAA do have some variances from state to state, but this framework of laws has certainly made it much easier for legal practitioners to prepare enforceable marital agreements for clients by clearly stating the requirements. For instance, under Florida law, there is a '''''very''''' material difference in what is required to enter into a legally binding prenuptial agreement versus a postnuptial agreement. To validly waive the spousal rights that would ordinarily be available to a surviving spouse under Florida law (such as homestead, elective share, exempt property, family allowance, etc.), the parties have to make a full and fair disclosure of their assets and liabilities to each other ''before'' entering into a postnuptial agreement. In contrast, no financial disclosure is required to waive those same spousal rights in a premarital agreement executed ''before'' marriage.<ref>''See'' Fla. Stat. Ann. (2019) [http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0732/Sections/0732.702.html § 732.702(2)].</ref> That said, if the lack of disclosure results in a prenup being unconscionable (unfair to one spouse) under Florida's Uniform Premarital Agreement Act, it may not be enforceable on those grounds.<ref>''See'' Fla. Stat. Ann. 2019 [http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0061/Sections/0061.079.html § 61.079(7)] (2019).</ref>

Even in states that have not enacted the UPAA/UPMAA like [[New York (state)|New York]], duly executed prenuptial agreements are accorded the same presumption of legality as any other contract.<ref>''See'' <u>[https://law.justia.com/cases/new-york/court-of-appeals/2001/97-n-y-2d-188-0.html Bloomfield v, Bloomfield]</u>, 97 N.Y.2d 188, 193 (N.Y. 2001)(citing <u>Sunshine v. Sunshine</u>, 40 N.Y.2d 875, affg 51 A.D.2d 326).</ref> A couple signing a prenuptial agreement doesn't need to retain separate attorneys to represent them, as long as each party understands the agreement and signs it voluntarily intending to be bound to its terms. There is a strong public policy favoring parties ordering and deciding their interests through contracts.<ref>''See'' <u>Matter of the Estate of Grieff</u>, [https://casetext.com/case/matter-of-greiff-1#p344 92 N.Y.2d 341] at 344.</ref> There are no state or federal laws that force adults with [[Capacity (law)|contractual capacity]] to have to hire legal counsel to be able to enter into a marital contract such as a prenuptial agreement, except for a California law that requires that the parties be represented by counsel if spousal support (alimony) is limited by the agreement.<ref name="calfc">See subsection (c) of {{cite web|title=California Family Code, Sec. 612|url=https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=FAM&division=4.&title=&part=5.&chapter=2.&article=2.|website=California Legislative Information|publisher=California State Legislature|access-date=27 August 2017}}</ref> A prenuptial agreement may be challenged if there is evidence that the contract was signed under [[Coercion|duress]].<ref>See, e.g., {{cite web |title=''Kremer vs. Kremer'' (2018) |url=http://www.mncourts.gov/mncourtsgov/media/Appellate/Supreme%20Court/Standard%20Opinions/OPA152006-053018.pdf |website=Minnesota Courts |publisher=State of Minnesota |access-date=1 June 2018}}</ref> Whether a premarital agreement was signed under duress must be proven by the facts and circumstances of each case. For example, it has been held that a spouse's claim that she believed that there would be no wedding if she did not sign a prenuptial agreement, where the wedding was only two weeks away and wedding plans had been made, was ''insufficient'' to demonstrate duress.<ref><u>Colello v. Colello</u>, [https://casetext.com/case/colello-v-colello-04-00272-4th-dept-2004 9 A.D.3d 855, 858], 780 N.Y.S.2d. 450 (2004).</ref>

Prenuptial agreements may limit the parties' property and spousal support rights but also guarantee either party the right to seek or receive spousal support up to a certain limit. It may be impossible to set aside a properly drafted and executed prenup. A prenup can dictate not only what happens if the parties divorce, but also what happens when they die. They can act as a contract to make a will and/or eliminate all of one's rights to property, probate homestead, probate allowance, right to take as a predetermined heir, and the right to act as an executor and administrator of one's spouse's estate.<ref>{{Cite news|url=https://www.forbes.com/sites/heatherlocus/2018/09/23/why-prenuptial-and-postnuptial-agreements-lead-to-stronger-marriages-and-prevent-disastrous-divorces/#bd8947964883|title=Why Prenuptial And Postnuptial Agreements Lead To Stronger Marriages And Prevent Disastrous Divorces|last=Locus|first=Heather|date=September 23, 2018|work=Forbes|access-date=December 3, 2019}}</ref>

A prenuptial agreement is only valid if it is completed before marriage. After a couple is married, they may draw up a post-nuptial agreement.

In most jurisdictions in the United States, five elements are required for a valid prenuptial agreement:<ref>{{cite web|last1=Debele|first1=Gary A.|last2=Rhode|first2=Susan C.|title=717363v1 1 Prenuptial Agreements in the United States|url=https://www.iafl.com/cms_media/files/prenuptial_agreements_in_the_us.pdf|website=International Academy of Family Lawyers|access-date=27 August 2017|archive-url=https://web.archive.org/web/20170828020040/https://www.iafl.com/cms_media/files/prenuptial_agreements_in_the_us.pdf|archive-date=28 August 2017|url-status=dead}}</ref>

# The agreement must be in writing (oral prenups are generally unenforceable);
# Must be executed voluntarily;
# Full and/or fair disclosure at the time of execution;
# The agreement cannot be [[unconscionable]];
# It must be executed by both parties (not their attorneys) and often notarized and/or witnessed.

There are several ways that a prenuptial agreement can be attacked in court. These include a lack of voluntariness, unconscionability, and a failure to disclose assets.<ref>''See generally'', Krause, Elrod, Garrison & Oldham, "Family Law: Cases, Comments, and Questions", Thomson West, St. Paul MN (2003) {{ISBN|0-314-26377-2}}</ref> Prenuptial agreements in all U.S. states are not allowed to regulate issues relating to the children of the marriage, in particular, custody and access issues. The reason behind this is that matters involving children must be decided in the children's best interests.<ref name="fields">{{cite journal|last1=Fields|first1=Jonathan E.|title=Forbidden Provisions in Prenuptial Agreements: Legal and Practical Considerations for the Matrimonial Lawyer|journal=Journal of the American Academy of Matrimonial Lawyers|date=2008|volume=21|pages=413–438|url=http://sc.aaml.org/sites/default/files/MAT210.pdf|access-date=27 August 2017|archive-url=https://web.archive.org/web/20180921013836/http://sc.aaml.org/sites/default/files/MAT210.pdf|archive-date=21 September 2018|url-status=dead}}</ref> However, this is controversial: some people believe that as custody battles are often the worst part of a divorce, couples should be able to settle this in advance.<ref>{{cite web|title=Preparing for a Broken Home|url=https://www.nytimes.com/2007/07/16/opinion/16miller.html|work=The New York Times|access-date=27 August 2017|author=James Andrew Miller|date=16 July 2007}}</ref>

Courts will not enforce personal lifestyle requirements such as that one person will do all housework.<ref name="fields"/> Courts will not enforce, per the prenuptial contract other parental decisions such as the children being raised a certain religion, but may take this agreement into account in regards to future separation agreements. In recent years, some couples have included social media provisions in their prenuptial agreements, setting forth rules as to what is permissible to be posted on social media networks during the marriage, as well as in the event the marriage is dissolved.<ref>{{cite news|last1=Effron|first1=Laura|title=I Love You, You're Perfect, but Watch What You Facebook: Social Media Prenups|url=https://abcnews.go.com/Lifestyle/love-perfect-watch-facebook-social-media-prenups/story?id=23977608|access-date=27 August 2017|agency=ABC News|date=3 June 2014}}</ref>

A [[sunset provision]] may be inserted into a prenuptial agreement, specifying that after a certain amount of time, the agreement will expire. In [[Maine]], for prenuptial agreements executed before October 1, 1993, unless the parties renew the agreement, it automatically lapses after the birth of a child.<ref>{{cite web|title=Maine Uniform Premarital Agreement Act, Sec. 606. Effect of children|url=http://legislature.maine.gov/statutes/19-A/title19-Asec606.html|website=Maine Revised Statutes|publisher=Maine Legislature|access-date=27 August 2017}}</ref> In other states, a certain number of years of marriage will cause a prenuptial agreement to lapse. In states that have adopted the UPAA ([[Uniform Premarital Agreement Act]]), no sunset provision is provided by statute, but one could be privately contracted for. Note that states have different versions of the UPAA.

Unlike all other contract law, [[consideration]] is not required, although a minority of courts point to the marriage itself as the consideration. Through a prenup, a spouse can completely waive rights to property, alimony, or inheritance as well as the elective share, and get nothing in return. [[Choice of law]] provisions is critical in prenups. Parties to the agreement can elect to have the law of the state they are married in govern both the interpretation of the agreement and how property is divided at the time of divorce. In the absence of a choice of law clause, it is the law of the place the parties divorce, not the law of the state they were married that decides property and support issues.

In drafting an agreement, it is important to recognize that there are two types of state laws that govern divorce{{spaced ndash}}[[equitable distribution]], practiced by 41 states, and [[community property]], practiced in some variation by 9 states. An agreement written in a community property state may not be designed to govern what occurs in an equitable distribution state and vice versa. It may be necessary to retain attorneys in both states to cover the possible eventuality that the parties may live in a state other than the state they were married. Often people have more than one home in different states or they move a lot because of their work so it is important to take that into account in the drafting process.

To financial issues ancillary to divorce, prenuptial agreements are routinely upheld and enforced by courts in virtually all states. There are circumstances in which courts have refused to enforce certain portions/provisions of such agreements. For example, in [[North Dakota]], the divorce courts retain jurisdiction to modify a limitation on the right to seek alimony or spousal support in a premarital agreement if it would cause the spouse who waived such right to need public assistance at the time of divorce.<ref>''See'' N.D. Cent. Code [https://www.legis.nd.gov/cencode/t14c03-2.pdf § 14-03.2-08(5)].</ref> [[Florida]] and several other states contain similar limitations to avoid a divorcing spouse from becoming a ward of the state upon divorce under a prenuptial agreement.<ref>''See'' Fla. Stat. Ann [http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0061/Sections/0061.079.html § 61.079(7)(b)].</ref>  Moreover, in Florida where the inheritance ([[elective share]]) and [[Homestead exemption|homestead]] rights granted to surviving spouses by state law are so strong, its [http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0061/Sections/0061.079.html Premarital Agreement Act] requires that a waiver of surviving spouse rights outlined in a prenuptial agreement be executed with the same formality as a [[Will and testament|will]] to be enforceable (notarized and witnessed by two disinterested parties).

=====Same-sex marriages=====
In 2015, the [[Supreme Court of the United States|U.S. Supreme Court]] granted same-sex marriages the same legal footing as marriage between opposite-gender couples, in the case of ''[[Obergefell v. Hodges]]'' (decided June 26, 2015). This effect of the Supreme Court's ruling is that a premarital agreement entered into by a same-sex couple in one state is fully enforceable in another state in the event of a divorce.<ref>''See'' [https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf <u>Oberfell v. Hodges</u>, 135 S. Ct. 2584 (2015)].</ref>

=====Federal laws=====
Certain federal laws apply to the terms that may be included in a premarital agreement. The Retirement Equity Act (REA) of 1984, signed into law by [[Ronald Reagan|President Ronald Reagan]] on August 23, 1984, reconciled confusion over whether [[Employee Retirement Income Security Act of 1974|ERISA]] preempted state divorce laws, thereby preventing pension plans from complying with court orders giving a spouse a portion of the worker's pension in a divorce decree.<ref>"[https://www.ssa.gov/policy/docs/ssb/v48n5/v48n5p38.pdf The Retirement Equity Act of 1984: A Review]", ''Social Security Bulletin'', May 1985, Vol. 48, No. 5 at p. 38, Social Security Administration.</ref> A prenuptial agreement can contain waivers by which each spouse agrees to release any claims against each other's retirement benefits that arise under both state and federal laws by the marriage, like under the REA.

When a United States citizen chooses to marry an immigrant, that person frequently serves as a Visa sponsor to petition for their fiancé to enter or stay in the United States. The [[United States Department of Homeland Security|Dept. of Homeland Security]] requires people sponsoring their immigrant fiancé to come to the U.S. on a Visa to provide an Affidavit of Support,<ref>{{cite web |title=I-864 Affidavit of Support |url=https://www.uscis.gov/i-864 |website=U.S. Citizenship and Immigration Services |access-date=3 December 2019}}</ref> and it is important to take into account the Affidavit of Support obligation for a U.S. sponsor about to publish a prenuptial agreement. The Affidavit of Support creates a 10-year contract between the U.S. Government and the sponsor, requiring the sponsor to financially support the immigrant fiancé from the sponsor's resources.<ref>''See'' <u>[https://drive.google.com/file/d/0B_6gbFPjVDoxUkR0eUNQc01qRzA/edit Toure-Davis v. Davis]</u>, United States District Court for the District of Maryland, holding "[t]hat affidavit is a contract in which 'the sponsor agrees to provide support to maintain the sponsored alien at an annual income that is not less than 125 percent of the Federal poverty line during the period in which the affidavit is enforceable[.]' Id. §&nbsp;1183a(a)(1)(A). The contract is legally enforceable against the sponsor by the sponsored alien (or by the Federal Government, any State, local or any other entity providing any means-tested public benefit) and, pursuant to the contract, the sponsor agrees to submit to the jurisdiction of any Federal or State court for the purposes of enforcement of the contract. Id. §&nbsp;1183a(a)(1)(B)-(C)." 2014 U.S. Dist. LEXIS 42522, *9-10 (D.Md., March 28, 2014).</ref> As the I-864 form expressly states, divorce does not terminate the support obligations the sponsor owes to U.S. Government, and the immigrant spouse has rights as a third-party beneficiary of the support promise the sponsor makes in the I-864 Affidavit. As such, any waiver of [[alimony]] in their prenuptial agreement must be drafted in a way that does not violate the contract that the U.S. sponsor makes with the government by providing the Affidavit of Support, or it will be at risk of being declared unenforceable.

=====California=====
In a 1990 California case, the court of appeals enforced an oral prenuptial agreement in the probate of the estate of one of the parties because the surviving spouse had substantially changed her position in reliance on the oral agreement.<ref>{{cite web|title=Hall v. Hall, 271 Cal. Rptr. 773, 222 Cal.App.3d 578 (1990)|url=https://scholar.google.com/scholar_case?case=5523723356137506136|website=Google Scholar|access-date=27 August 2017}}</ref> However, following changes in the statutory law, it has become much more difficult to change the character of a community or separate property without a written agreement.<ref>{{cite web|title=In re Marriage of Benson, 32 Cal.Rptr.3d 471, 36 Cal.4th 1096 (2005)|url=https://scholar.google.com/scholar_case?case=5523723356137506136|website=Google Scholar|access-date=3 December 2019}}</ref>

Parties can waive disclosure beyond that which is provided, and there is no requirement for notarization, but it is good practice. There are special requirements if parties sign the agreement without an attorney, and the parties must have independent counsel if they limit spousal support (also known as alimony or spousal maintenance in other states). Parties must wait seven days after the premarital agreement is first presented for review before they sign it, but there is no requirement that this be done a certain number of days before the marriage.<ref>''See'' Cal. Fam. Code [https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=FAM&sectionNum=1615. § 1615(c)(2)].</ref> Prenups often take months to negotiate so they should not be left until the last minute (as people often do). If the prenup calls for the payment of a lump sum at the time of divorce, it may be deemed to promote divorce. This concept has come under attack and a lawyer should be consulted to make sure the prenup does not violate this provision.{{citation needed|date=December 2019}}

In California, through a prenuptial agreement, a couple may waive their rights to share property (community property).<ref>{{cite journal|last1=Tour-Sarkissian|first1=Christine|title=When Does Separate Property Become Community Property (or Vice Versa)?|journal=Real Property Law Reporter, Continuing Education of the Bar|date=7 July 2016|doi=10.2139/ssrn.2912717 |s2cid=168829073 |url=https://ssrn.com/abstract=2912717|access-date=27 August 2017|url-access=subscription}}</ref> The agreement can limit spousal support (although a court at the divorce can set this aside if it deems that the limitation is unconscionable). The agreement can act as a contract to make a will requiring one spouse to provide for the other at death. It can also limit probate rights at death, such as the right to a probate allowance, the right to act as an executor, the right to take as a predetermined heir, and so forth.<ref name="calfc"/>

=====North Carolina=====
Prenuptial agreements are codified in the North Carolina General Statutes and [[North Carolina Constitution]]. Chapter 52B of the North Carolina General Statues, titled The Uniform Premarital Agreement Act, covers definitions and enforcement of prenuptial agreements. In the North Carolina Constitution, in ARTICLE XIV MISCELLANEOUS, Sec. 6. Marriage., prenuptial agreements are constitutionally protected.

=====South Carolina=====
Prenuptial agreements are codified in the [[South Carolina Code of Laws]] and [[South Carolina Constitution]]. In Title 20 - Domestic Relations, CHAPTER 1, Marriage, ARTICLE 1, General Provisions, of the South Carolina Code of Laws, it covers the definitions and enforcement of prenuptial agreements. In the South Carolina Constitution, in ARTICLE XIV MISCELLANEOUS, Sec. 6. Marriage., prenuptial agreements are constitutionally protected. In the South Carolina Constitution, ARTICLE XVII, MISCELLANEOUS MATTERS, SECTION 15., prenuptial agreements are constitutionally protected.