What is a premarital agreement?
A premarital agreement, sometimes referred to as a prenuptial agreement, is a legally binding agreement or contract that is entered into in anticipation of marriage.
Rhode Island’s Uniform Premarital Agreement Act details requisite formalities, which matters can or cannot be included in the premarital agreement, when the agreement goes into effect, whether the agreement can be amended, how to enforce the agreement, etc.
What is the point of a premarital agreement?
This question must be assessed on a case-by-case basis. Generally, premarital agreements protect assets that might otherwise be subject to equitable distribution or division at the time of divorce. Premarital agreements can also protect a debt-free spouse from taking on the debt and financial obligations of the other, simplify the division of property if the marriage terminates and at a time when the parties are not as emotionally-driven, clarify the financial responsibilities of the parties, save the parties legal fees at the time of divorce, etc.
What can or cannot be included in a premarital agreement?
According to § 15-17-3, the 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 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, which are not in violation of public policy or a statute imposing a criminal penalty.
(9) The right of a child to support may not be adversely affected by a premarital agreement.
It is important to note that the factors listed above are non-exhaustive, which means the parties are free to include other matters so long as they do not violate public policy or a criminal statute. All premarital agreements must be in writing and signed by both parties.
What could stop a premarital agreement from being enforced?
Not all premarital agreements are enforceable. Agreements that were not entered into voluntarily will not be enforced, agreements that are unconscionable at the time of execution, incredibly unfair to one spouse, etc. In some situations, the majority of the premarital agreement may be enforceable but certain terms removed or deemed unenforceable by the court. In those types of situations, the invalidity of a certain term or provision generally does not affect the other terms or provisions which can still be given effect.
It is imperative to keep in mind that these agreements cannot be used to determine child custody or visitation rights, all decisions regarding children will be made by the judge with their best interest in mind.
How does a premarital agreement executed and enforced in Rhode Island vary from other states?
Like other states that have adopted the Uniform Premarital Agreement Act, Rhode Island courts consider whether the premarital agreement in question was fair and reasonable at the time of execution and thus enforceable.
It is very difficult to prevail on an unenforceability claim in Rhode Island because the spouse challenging the enforceability of the premarital agreement must prove, by clear and convincing evidence (meaning more likely than not) that: (1) he or she did not enter into the agreement voluntarily AND (2) the agreement was unconscionable at the time of execution (because he or she did not receive a fair and reasonable disclosure of the property or finances of the other spouse, did not waive any such disclosure, and was unable to otherwise reasonably obtain such information). See Marsocci v. Marsocci, 911 A.2d 690 (R.I. 2006).
It is easier for a spouse to prevail on an unenforceability claim in a state that has not adopted the Uniform Premarital Agreement Act. 22 states (one of them being Massachusetts) have not adopted the Uniform Premarital Agreement Act. In those states, the court must consider whether the premarital agreement in question was fair and reasonable at the time of execution AND at the time of enforcement (i.e., the time the parties seek to enforce the agreement).
If you're someone seeking legal advice about or needs a premarital agreement, please contact us at Repetto Law, LLC!
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