With All My Worldly Goods I Thee Endow, or Maybe Not: A Reevaluation of the Uniform Premarital Agreement Act after Three Decades

Abstract

The Uniform Premarital Agreement Act was adopted relatively soon after the acceptance of the idea in the U.S. that premarital agreements contemplating the economic consequences of divorce could be enforced. During the past three decades about half of all U.S. states have adopted it. The overriding goal of the drafters appears to have been to create a set of rules that made it very difficult to challenge the enforceability of the agreement if the parties divorce. It sets forth very loose requirements pertaining to rules governing bargaining tactics, and severely limits any inquiry into the substantive unfairness of the agreement. The right to both equitable distribution and spousal support may be restricted or waived. Since the UPAA was adopted, other states and countries have promulgated quite different rules regarding how a divorce court should determine whether to enforce an agreement contemplating a possible divorce. These rules differ in many significant respects from the policy judgments reflected in the UPAA. A committee has been created to consider whether to modify the UPAA. This article compares the UPAA to rules now being applied in other countries and states that have not adopted the UPAA, and suggests some significant modifications to the UPAA. The proposed modified UPAA would still give parties substantial contractual freedom, but would improve the fairness of the bargaining process, disallow last-minute negotiation, and allow courts to review whether the agreement is unconscionable at divorce. In addition, the right to spousal support could not be affected if the parties have a common biological or adoptive child.