A marital agreement is different from the historical marriage regime, which was not primarily about the effects of divorce, but on the constitution and maintenance of dynastic families or a divorce regime established by the parties as part of the dissolution of their marriage. The laws differ between the two states and the countries, both in terms of the content they may contain and the conditions and circumstances under which a conjugal agreement can be declared unenforceable, such as. For example, an agreement signed in cases of fraud, coercion or adequate disclosure of assets. Currently, 28 states and the District of Columbia have adopted an updated version of the Uniform Premarital Agreement Act (UPAA) or the Advance Agreements Act (UPMAA). The UPAA was adopted in 1983 by the Uniform Law Commission (ULC) to promote greater uniformity and predictability between state laws with respect to these contracts in an increasingly temporary society. The UPAA was partially enacted to ensure that an effective prenup in one state is awarded by the courts of another state where the couple could obtain a divorce. UPMAA was proclaimed in 2012 by the ULC to clarify and modernize the inconsistent laws of the state and create a uniform approach for all marital and post-marriage agreements: there are several ways to have a marriage agreement attacked in court. These include lack of volunteerism, lack of scruples and lack of disclosure of assets. [39] In all U.S. states, it is not permissible to address issues relating to children of marriage, particularly custody and access issues.
[40] The reason is that children`s issues must be decided in the best interests of children. [41] However, this is controversial: some people think that, as custody disputes are often the worst part of a divorce, couples should be able to settle this in advance. [42] Even in states that have not adopted UPAA/UPMAA such as New York, properly executed marriage contracts are admitted to the same presumption of legality as any other contract. [32] It is not necessary for a couple who signs a marriage pact to keep separate lawyers to represent him as long as each party understands the agreement and signs it voluntarily with the intention of being bound by its terms. There is a strong public policy that favours parties that control and decide their own interests through contracts. [33] There are no state or federal laws requiring adults with contractual capacity to hire a lawyer in order to enter into a marriage contract such as a marriage contract, with the exception of a California law that requires the parties to be represented by a lawyer if spousal assistance (support) is limited by the agreement. [34] The marriage agreement may be challenged if it is proven that the contract was signed under duress. [35] Whether a pre-marriage contract was signed under duress must be justified by the facts and circumstances of this case. For example, it was found that a spouse`s assertion that she believed there would be no marriage if it was not a marriage, where the marriage was only two weeks away and marriage plans had been made, was not sufficient to demonstrate coercion.
[36] With respect to financial matters leading to divorce, matrimonial agreements are regularly upheld and enforced by courts in virtually all states.