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The Uniform Law Commission, aka the National Conference of Commissioners on Uniform State Laws, aka the “ULC” for purposes of this article, is a 128-year-old organization comprised of practicing attorneys and legal scholars. The ULC surrounds itself by leather bound books (just kidding) while it researches and drafts uniform state laws in various areas of law that would benefit from uniformity. You may have heard of Uniform Commercial Code, or the Uniform Electronic Transactions Act, or the Uniform Interstate Family Support Act, among many others- yep, those were all drafted by the ULC. Although the ULC drafts and promotes the adoption of these acts, it is up to the legislature of each state to decide whether or not to adopt a uniform act, and if adopted, what modifications they would like to make to the act.
“In today’s mobile society, it is particularly important that the rules governing the enforceability of premarital … agreements be standardized. The UPMAA clarifies and modernizes largely divergent state laws and creates a harmonized and uniform approach to premarital … agreements.”
Now, the UPMAA (as you can see from the name “Marital”) also applies to “Marital Agreements,” more commonly known as Postnuptial Agreements or Postnups. But, we are HelloPrenup, so we are here to talk about PREmarital agreements or prenups. Just making sure we are clear here.
Next, it set forth some requirements for a valid premarital agreement. The UPMAA did the following:
- Set the standard that prenuptial agreements must be in writing
- Prenuptial agreements are enforceable without consideration
- Offered courts in every state that wished to adopt the UPMAA a general framework to help determine an agreement’s validity, regardless of what state it was executed (signed) in
- Permitted prenuptial agreements that are found to be unconscionable at the time of execution (when the document was signed, sealed, delivered) to be unenforceable stating that unconscionability is a ground for refusing to enforce an agreement;
- Permitted that failure of adequate disclosure is a ground for refusing to enforce an agreement (this usually refers to financial disclosure people, read our zillion other blogs on this to read more about why financial disclosure is so important……..)
- Prohibits enforcement of a prenuptial agreement entered into involuntarily (aka the result of duress, aka you signed it with a gun to your head)
- Prohibits enforcement of a prenuptial agreement entered into that limits remedies available to a spouse for domestic violence;
- Supports traditional choice of law and conflict of laws principles, meaning that you, the party entering into the agreement should have the right to specify in the prenuptial agreement what state’s law should be utilized in the enforcement of this prenuptial agreement.
In 2013, Colorado and North Dakota were prenup pioneers and adopted the UPMAA, and now 29 states + the District of Columbia have adopted, many with modifications, some version of the UPAA and UPMAA. Keep in mind that each state that adopted these guidelines has also enacted their own laws pertaining to prenuptial agreements, so there are variations from state to state. No, they couldn’t make it that simple, these are lawyers we are talking about! However, the UPMAA framework of consistent baseline requirements for a valid prenuptial agreement has undoubtedly made it much easier for all of us to understand how a prenuptial agreement should be structured and include.
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- Arizona
- Arkansas
- California
- Colorado
- Connecticut
- Delaware
- District of Columbia
Over and above the time needed for emotional processing, the actual exercise of creating a prenuptial agreement can drag on for months. Although technically a prenup can be drawn up in under an hour (using HelloPrenup!), if you and your partner disagree about a lot it can take significantly longer.
It is recommended to bring up a prenuptial agreement 3 to 6 months before your wedding date in order to allow time for finalizing all of the details.
Yes, if necessary you can opt for a postnuptial agreement instead. However, “postnups” have their downsides, and should be reserved for emergency situations. The last thing you should (intentionally) do is wait until after marriage to broach the topic, which might lead your
partner to feel tricked and betrayed. That is certainly not how you want to start your married life together!
It is far easier to apply reason and logic when someone is calm than when they are agitated. If you want your partner to be open to what you have to say, you need to approach them when they are in a receptive mood.
By this stage you can likely sense your partner’s vibes, and you might even be aware of when they are typically most relaxed. Use this knowledge to your advantage, and time your discussion accordingly.
Remember to leave time for a very long conversation to take place directly after you broach the topic. Ideally, there will be no one else around, and the two of you will have an evening or weekend to explore the subject in depth.
Rule #1… don’t wait until the last minute to raise the idea of a prenuptial agreement. Just don’t. So, how do you begin the conversation? When it comes to relationships, honesty is the best policy. If you are afraid of divorce, find the courage to say so. If you were a child of divorce and this has affected how you view marriage, say so. There is nothing wrong with opening up to your partner about abandonment issues, or the fear that somewhere down the line your lover may leave you. Make sure you are clear on what your reasons for wanting a prenup are, and choose to be vulnerable with your partner. You should be able to feel safe bringing up emotional topics with your partner from time to time while keeping in mind that how you broach the subject is key. Want to learn more about us? Check us out here.
Another way of easing into the prenup conversation is by raising the topic of financial goals. Whether you’re a young couple or entering into a second marriage, finances are going to play a major role in your future relationship. It is important to know whether your partner has any debt and to be transparent about your earnings. It’s a good idea to have a discussion not only about how much money you make or have but about how you spend your cash on a daily basis. What is your concept of saving vs spending? Before raising prenup, consider broaching other topics like how to save for retirement, how to fund emergency savings, and what would happen to any future inheritances. Remember that even if you both have very little now, things could always change.Interested in prenup clauses? We have lots of those.
About half of marriages end in divorce. Fact. Money is a leading cause of divorce. Fact. A prenuptial agreement will facilitate conversations about money. Fact. Many attorneys believe that prenups are just as much an emotional document as they are a legal one. Still, depending on your partner’s preferred communication style, it may be helpful to keep the conversation focused on the proven reasons why a prenup makes sense.
Begin exploring what is included in a prenup, and discuss with your partner. Some topics to discuss for inclusion in your prenup include:
- Debts
- Assets
- Property
- Business
- Expected inheritances
If you are in debt, be sure to discuss how a prenup would protect your partner from those debts. Also, point out that well-drafted prenups serve to benefit the partner who earns less in a number of ways. Do you own a business? It is also wise to consider the possibility of unexpected financial success. This is especially relevant for younger couples, who are only just in the early stages of figuring out their career. You don’t have to have this conversation in the context of divorce. Rather, talk about business ownership and career in the context of protecting any other people involved- like employees! Is this a second marriage? If your partner has children from a previous marriage, they might be interested to learn that a prenup protects those children, too. What happens when you sign a prenup?
Steer clear of a power play or one-sided agreement by not making this a true conversation. Bombarding your partner with your “terms” without asking any questions will make this process feel unfair. Instead, try to come to a deep understanding of your partner’s priorities and #lifegoals. Give your partner time to do their own research if they are unfamiliar with the concept of prenuptial agreements. An attorney can help your partner and you understand your responsibilities and rights so that you can reach a reasonable and fair agreement. If you would like legal advice, you should contact an attorney to discuss the ramifications of the terms of your prenuptial agreement
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