For a RI prenup to be considered valid in the state of Rhode Island, it must be drafted under specific requirements that include:

Your prenup could be a risk if you include any of the following provisions:

A Rhode Island prenuptial agreement may not be enforced if the party can prove that the agreement was not voluntarily executed,  a party was not provided a fair and reasonable disclosure of the property or financial obligations of the other party, among other points included here.

Marital assets are any property or income that is acquired during the marriage by either party. These assets will be subject to equitable distribution based on a number of factors (see link below). Though the assets may have be acquired and shared “equally” it is still up to Rhode Island courts to decide how the equity will be distributed based on what is considered to be fair.

Rhode Island courts are hesitant to assign property or an interest in property held in the name of one of the spouses, if that property was held by the spouse prior to the marriage. However, the court may assign the income derived from said property during the marriage, and may also assign the appreciation in value of that property as marital property. Long story short? If you don’t want any of your separate property, appreciation of that property, or earnings from that property to be considered part of the marital estate subject to division, get a prenup!

How does Rhode Island view alimony?  Rhode Island “alimony” is defined as payments for the support of either the husband or the wife, and is designed to provide support for that spouse for a reasonable length of time in order to enable the recipient of the alimony to become financially independent and self-sufficient. Rhode Island courts can award alimony for an indefinite period of time when they deem that it is appropriate based upon a variety of factors, including the length of marriage, employability of the parties, etc. The factors for indefinite alimony in Rhode Island can be viewed here. .

Rhode Island follows an equitable distribution theory of property division, but like all states, has it’s own individual laws. Rhode Island calls this process “Assignment of Property.” That means that the assets and debts that you and your spouse acquired will be split in an equitable manner (if you haven’t already determined this split in a prenuptial agreement!) The courts in Rhode Island consider many different factors when deciding how to divide marital property in an equitable manner, including the length of the marriage, contributions to the marriage, the ages of the spouses, the employability of the parties, the health of the parties, among others. Read up on Rhode Island’s equitable distribution theory here:

Rhode Island is a “no-fault” divorce state – which means that couples married within this state do not need to provide any sort of evidence that a divorce is needed (from either party for any reason). Irrespective of the fault of either party,  a divorce can be granted by way of “irreconcilable differences” which have caused the irremediable breakdown of the marriage.

This Rhode Island prenup case establishes the principle that “In Rhode Island, antenuptial agreements are governed by the Uniform Premarital Agreement Act (Act), which is codified in G.L. 1956 chapter 17 of title 15.” The Act provides that an antenuptial agreement (AKA a prenup…) will be presumed enforceable unless the party against whom enforcement is sought proves the following:

The burden of proof as to each of the elements required in order to have [an antenuptial] agreement held to be unenforceable shall be on the party seeking to have the agreement declared unenforceable and must be proven by clear and convincing evidence”

Donna and Michael Rubino were married in 1997. At the time they married, they each had children from prior marriages. This was a second marriage for both of them. Only a few days prior to their marriage, Donna and Michael executed an antenuptial agreement (AKA a prenup). The purpose of the agreement was to “fix and determine the rights of each of them,” including to certain property in the event that they were to divorce. The couple divorced only a few years later, and their prenuptial agreement was upheld by the appeals court.

The Rhode Island court in Rubino found that the trial justice erred in concluding that the statute, §15-5-16.1 “should determine the rights and liabilities of the parties in a divorce action rather than the antenuptial agreement signed by them two days prior to the marriage, since there was no evidence of a written agreement amending or revoking the antenuptial agreement and nothing to prove the required elements under §15-17-6 by clear and convincing evidence.”

You can read the entire case here.

Susan and John Penhallow were married in March of 1988.  At the time of their marriage, Susan was fifty years old and John was seventy eight years old. Prior to the marriage, John lived on his thirty-acre farm in Burrillville, Rhode Island, had never married and had no children. Susan, on the other hand,  had recently divorced after twenty eight years of marriage, had two adult children from that previous marriage, and at the time she met John, lived in a house she owned in Rhode Island and had a career as a realtor.

On the day of their wedding the couple signed a premarital agreement that had been drafted by an attorney in Rhode Island. Although both Susan and John owned real estate and personal property, those assets were not listed in the premarital agreement. The premarital agreement provided (we are paraphrasing here, if you want to read all the details, click here to read the whole case) that all property would remain separate property, but that John would transfer his real estate into both names. Under the terms of the Rhode Island prenuptial agreement, if Susan were to initiate a divorce, a separation, or an annulment of the marriage, she would be required to return John all property she had acquired under the prenuptial agreement. On the other hand, if John were to initiate a divorce, separation, or annulment, then Susan would be entitled to retain 50 percent of the property she had acquired under the prenuptial agreement (how creative!).

The couple filed for divorce a few years later. You probably saw that coming!

The lower court’s decision in the case was appealed, and the enforcement of the premarital agreement examined by the Rhode Island Appeals Court. The Court states that  “In this state all premarital or “antenuptial” agreements executed on or after July 1, 1987, “between prospective spouses made in contemplation of marriage and to be effective upon marriage” must comply with the provisions of the act…The Family Court justice found that the parties entered into the agreement “in accordance with [§] 15-17-1,” the section of the act that defines the terms “premarital agreement” and “property.” Sections 15-17-2 and 15-17-3 of the act set forth the requisite formalities and permissible content, respectively, of premarital agreements, while § 15-17-6 specifies the conditions that if proven by the party against whom enforcement of the agreement is sought render the agreement unenforceable. In the case before us, the Family Court justice invalidated the premarital agreement on the ground that it was unconscionable when it was executed by the parties. The defendant, on the other hand, contended that the agreement was valid and enforceable. We agree with defendant.”

So, how did they arrive at the decision to uphold the premarital agreement? Let’s summarize.

Section 15-17-2 of the Uniform Premarital Agreement Act in Rhode Island requires that a “premarital agreement must be in writing and signed by both parties.” It was undisputed that the instant agreement was in writing, and it was undisputed that both plaintiff and defendant signed the premarital agreement on March 17, 1988. In addition, although one party claimed they did not sign the agreement, their signatures had been notarized, and therefore the signatures were considered valid by the court.

The Rhode Island Supreme Court determined that “[t]o avoid enforcement of a premarital agreement, the party against whom the enforcement is sought must show, pursuant to §15-17-6(a) and (b), that (1) That party did not execute the agreement voluntarily; and (2) The agreement was unconscionable when it was executed and, before execution of the agreement; (i) That party was not provided a fair and reasonable disclosure of the property or financial obligations of the other party; (ii) Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and (iii) Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party. (b) The burden of proof as to each of the elements required in order to have a premarital agreement held to be unenforceable shall be on the party seeking to have the agreement declared unenforceable and must be proven by clear and convincing evidence.”

In Penhallow v. Penhallow, 649 A.2d 1016, 1021 (R.I.1994), we noted that, in enacting the Uniform Premarital Agreement Act, “[t]he Legislature * * * clearly evidenced the intent to preserve the validity of [premarital] agreements [and] * * * maintain[ ] the integrity of such agreements.”   To that end, the Legislature placed a significant burden upon the party seeking to render the agreement unenforceable-that party must prove all of the elements in §§ 15-17-6(a)(1) and (2), and must do so by clear and convincing evidence.   See Penhallow, 649 A.2d at 1021.   Furthermore, the Act clearly provides that an antenuptial agreement “may be amended or revoked only by a written agreement signed by the parties.” Section 15-17-5.  

The Marsocci case stands for the principle that failure by one party to fully disclose the value of their assets or net worth is not enough to make a prenuptial agreement in Rhode Island invalid. The party challenging enforceability must prove each element of an unenforceability claim for the prenuptial agreement to be unenforceable. The Court further found that “[t]he UPAA does not require that the assets and financial obligations of the parties be set forth in the agreement. Rather, a party’s failure to provide a fair and reasonable disclosure of the property or financial obligations to the other party is a factor that must be proven by clear and convincing evidence to defeat the agreement.” Id. at 698-699. You can read the entire case here.

Our take? It’s always safest to disclose all sets. Don’t take your chances on this one.