Checkpoint Contents
Estate Planning Library
Estate Planning Journals
Estate Planning Journal (WG&L)
Estate Planning Journal
2014
Volume 41, Number 07, July 2014
Articles
Factor Premarital Agreements and Divorce Into Estate Plans, Estate Planning Journal
PREMARITAL AGREEMENTS
Factor Premarital Agreements and Divorce Into Estate Plans
While the precise requirements for an enforceable premarital agreement depend on state
law, financial disclosure is generally crucial.
Author: LINDA J. RAVDIN, ATTORNEY
LINDA J. RAVDIN is a partner in the Bethesda, Maryland, law firm of Pasternak &
Fidis, P.C., where she practices family law exclusively. She is a member of the
Maryland, Virginia, and District of Columbia Bars. She is the author of Premarital
Agreements: Drafting and Negotiation (ABA, 2011) and TM849-2d Marital
Agreements (Tax Mgmt. Inc., 2012).
With the increasing acceptance of premarital agreements, including among young, first-timers; the addition
of same-sex couples to the marriage pool; and the continued high rate of divorce, more premarital
agreements are figuring in divorce litigation. This article addresses some of the special concerns that arise
in the divorce scenario that attorneys should consider when drafting documents.
Validity at divorce: process vs. substance
As of 2014, 26 states and the District of Columbia have adopted the Uniform Premarital Agreement Act
(UPAA), and some other states follow validity criteria similar to those of the UPAA (see Exhibit 1). In these
states, the emphasis is on process, not fairness of the terms. Under UPAA §6(a), a premarital agreement is
valid if the parties executed it voluntarily. Furthermore, if the agreement was unconscionable at execution,
Reprinted with permission from Thomson Reuters Tax & Accounting
the challenging party must have received "fair and reasonable" financial disclosure, had constructive
knowledge of the other party's property and financial obligations, or waived disclosure.
Exhibit 1. UPPA Validity Criteria Followed in These Jurisdictions
The 20 jurisdictions that adopted the UPAA without changing the validity criteria are:
(1) Arizona.
(2) Delaware.
(3) District of Columbia.
(4) Florida.
(5) Hawaii.
(6) Idaho.
(7) Illinois.
(8) Kansas.
(9) Maine.
(10) Montana.
(11) Nebraska.
(12) Nevada.
(13) New Mexico.
(14) North Carolina.
(15) Oregon.
(16) Rhode Island.
(17) South Dakota.
(18) Texas.
(19) Utah.
(20) Virginia.
*****
The UPAA permits a court to uphold an agreement that was unconscionable when executed as long as one
of the financial disclosure requirements was met. Other states preclude enforcement of an agreement that
was unconscionable at execution. However, the primary emphasis, even in these states, is on the fairness
of the process. Courts hold that competent adults are free to enter into a premarital agreement that is
substantively unfair. A court will not relieve a party of a bad bargain.
1
Validity in the second-look states
Reprinted with permission from Thomson Reuters Tax & Accounting
In a significant minority of states, a court may consider the substantive fairness of a premarital agreement
as of divorce-known as the "second look." These states are Connecticut, New Jersey, and North Dakota
(UPAA states), and Alaska, Georgia, Kentucky, Massachusetts, Michigan, Minnesota, Mississippi, New
Hampshire, South Carolina, Vermont, West Virginia, and Wisconsin (non-UPAA states). By contrast, little
authority would permit a probate court to take a second look after death.
Courts in second-look states judge the adequacy of the substantive terms by one of two standards:
(1) Mere unfairness. 2
(2) Unconscionability. 3
The degree of unfairness required to prove unconscionability is quite extreme. Challenging parties have an
uphill battle; nevertheless some challengers do prevail. Events subsequent to marriage can affect the
validity of an agreement governed by the law of a second-look state. The stronger party and counsel should
consider the fairness of the terms of the agreement at the outset and whether it may become unfair over
time. Driving too hard a bargain may prove to be the stronger party's undoing.
4
Most challenges to validity fail
Most challenges to validity fail. This is true even in the second-look states. But spouses dissatisfied with
their premarital agreements continue to try. The reporters are full of cases in which a party challenged a
premarital agreement on the ground of duress or lack of voluntariness. The most common factors asserted
in support of a duress claim are:
•
Late presentation of the agreement.
•
A threat not to marry unless the agreement was signed.
•
Lack of legal advice.
•
Emotional distress.
•
Disparity of bargaining positions.
Courts have generally held that a single factor-such as late presentation or lack of legal advice-is
insufficient standing alone. 5 This is good news for proponents. However, in many of these cases, the
proponent would have been better served by a fairer process and substantive terms that afforded an
economically disadvantaged spouse some degree of financial security. Insofar as the Uniform Premarital
and Marital Agreements Act (UPMAA) is adopted, it will mandate a fairer process.
The rare winner
Reprinted with permission from Thomson Reuters Tax & Accounting
In the rare cases where a court has invalidated a premarital agreement on duress grounds, there has
generally been a combination of coercive factors that led to the result, often including inadequate financial
disclosure. Holler v. Holler, 6 a South Carolina case, provides a good example of how extreme the
procedural unfairness has to be to get a premarital agreement invalidated in most states.
The wife in this case was an uneducated Ukrainian national. Shortly after arriving in the U.S. she became
pregnant with the husband's child. She was completely dependent on the husband and had no money to
hire counsel. Her visa was due to expire. The husband did not have the agreement translated. She signed
the agreement six days before the wedding. The court found both duress and that the agreement was
unconscionable at execution.
Financial disclosure
In both the divorce and the death scenarios, a proponent's fair and accurate financial disclosure can be the
key to prevailing in a challenge. A written, itemized statement of major assets with reasonable valuations,
debts, and amounts and sources of income is the ideal. 7 The reporters are full of cases where a proponent
provided something less than full disclosure, for example, by omitting some assets or not providing values,
or relied on oral disclosure or the opponent's preexisting knowledge. In many of these cases, the proponent
ultimately prevailed, but he or she incurred significant fees and was at risk while the litigation was pending.
When a proponent must prove constructive knowledge, or informal disclosure, he or she will have a
potentially burdensome task. It may be necessary to locate documents not readily available, and find
witnesses who have retired and moved away, or whose memories have faded. A reasonably complete
written statement, annexed to the agreement, including values, will survive the passage of time, loss of
memory, and death of witnesses.
UPMAA: best practices
Most clients planning for a premarital agreement seek a predictable outcome; they want to know in advance
what their rights and obligations will be if the marriage fails, and that a court will uphold the agreement if
challenged. The best protection a proponent can get from the risk and cost of future divorce litigation is a fair
process and a fair result. The Uniform Law Commission adopted the Uniform Premarital and Marital
Agreements Act (UPMAA) in 2012. To the extent enacted, the UPMAA will raise the process standards for
validity of premarital agreements, but will require little alteration in current best practices. Best practices are
the same, whether the agreement is ultimately enforced at death or divorce.
The most important change the UPMAA will bring about is the requirement of section 9(a)(2) that the
challenging party have access to independent legal advice before signing. Access to counsel means both
Reprinted with permission from Thomson Reuters Tax & Accounting
the money to hire a lawyer and the time to find one, consult with the lawyer, and consider his or her advice.
When there is a significant disparity in resources, the proponent should plan to pay the other party's legal
fees. The access to counsel requirement has a two-fold impact on the fairness of the process from the
standpoint of the economically weaker party. It means the proponent should present the agreement well in
advance of the wedding; and it will give the other party a meaningful opportunity to negotiate the terms.
In addition, in contrast to the UPAA, the UPMAA makes a premarital agreement unenforceable if it was
unconscionable at execution, even if executed voluntarily and with adequate financial disclosure. Actual
substantive fairness of terms is not a requirement for validity. 8 However, a proponent will be better
protected if the agreement provides a reasonable degree of financial security for an economically
disadvantaged party.
Validity at divorce and the migratory couple
Parties may, subject to general choice-of-law principles, select the state whose law will govern any future
dispute about the agreement, including a dispute about whether the agreement is valid. 9 There must be a
nexus between the parties, or one of them, and the state whose law is chosen.
The choice of governing law, or the failure to select governing law, can affect resolution of a future dispute
about validity of the agreement. For example, in DeLorean v. DeLorean, 10 the husband's disclosure was
inadequate and would have doomed the premarital agreement had its validity been determined under New
Jersey law. However, the New Jersey court gave effect to the parties' choice of California law and upheld it
as adequate under California disclosure standards. By contrast, in Rivers v. Rivers, 11 the premarital
agreement, executed in Louisiana, had no choice-of-law provision. The Missouri court applied stricter
Missouri law and held the agreement was invalid at divorce.
Failure to select governing law can also create an opportunity for litigation over what law a court should
apply to resolve a dispute about validity. For example, in Black v. Powers, 12 two Virginia residents traveled
to the Virgin Islands where they signed a premarital agreement with no choice-of-law clause and got
married. The appeal resolved the dispute about applicable law in favor of Virgin Islands law although it
apparently made no difference to the outcome of the dispute about validity. An express choice-of-law
clause could have eliminated one facet of the litigation.
Section 187(2)(b) of the Restatement permits a court to refuse to apply the law chosen by the parties when
it conflicts with a fundamental policy of the forum state. Case law provides little guidance as to when a court
in a substantive fairness state will apply its own law on public policy grounds. A court in a second-look state
could conclude that fairness, or conscionability, at divorce is sufficiently important to warrant application of
the law of the forum state, but there is little case law to guide the practitioner as to when courts will reject the
parties' contractual choice of law. In the absence of guidance, proponents will generally be better served by
Reprinted with permission from Thomson Reuters Tax & Accounting
an agreement that makes reasonable provisions for an economically disadvantaged spouse.
Spousal support waivers
In the majority of states, parties may enter into a contract that completely waives spousal support or that
fixes support at a predetermined amount and duration coupled with a waiver of all other support rights.
Spousal support award over waiver. In the majority of states, a court can make a spousal support award
at divorce over a premarital agreement waiver, albeit under limited circumstances. Under the UPAA, a court
can make an award only to keep a spouse off public assistance.
13
In the 15 second-look states, because
the court can consider whether an agreement remains substantively fair (or, not unconscionable) at divorce,
it can separately consider fairness of the alimony waiver.
14
In another group of states, a divorce judge is
permitted to consider whether to enforce a spousal support waiver under circumstances less severe than
welfare eligibility.
There is some variation among these states as to the degree of post-divorce hardship required to support
an award. Some states, by statute or case law, preclude enforcement of a support waiver that is
unconscionable at divorce. 15 In some states, the claimant must prove changed circumstances. There is
variation among these states about whether the change must have been unforeseeable.
Where there is a significant disparity in resources, it will often be better for the agreement to make
provisions for some support. Courts are more likely to enforce a waiver when it is coupled with even modest
support for an economically disadvantaged spouse.
No-waiver states. In New Mexico, Iowa, South Dakota, and Mississippi, a spousal support waiver in a
premarital agreement is not enforceable. In these states, the divorce judge has the same authority to
consider a claim for spousal support as in the absence of an agreement.
Waiver of temporary (pendente lite) spousal support. A spouse may seek an award of temporary
support, i.e., support payable while a suit for divorce is pending and the parties remain married. Courts in a
few states have ruled that the right to support during marriage is not waivable. As a result, a court in these
states could make a temporary award, despite a waiver, if otherwise appropriate. Most courts have not yet
ruled on enforceability of a waiver of temporary support. This is an area of uncertainty for future payors.
Spousal support waiver and the migratory couple. The forum for divorce may be a different state than
that of the state whose law the agreement provides will govern it. The law and public policy of the forum
state may override the parties' contractual choice of law and permit the court to impose a support obligation
different from that to which the parties agreed. 16 As is the case with challenges to general validity,
discussed above, there is little guidance in the case law. It is reasonable to assume courts in no-waiver
states will refuse enforcement on public policy grounds.
Reprinted with permission from Thomson Reuters Tax & Accounting
Waiver of right to support during marriage; medical expenses and other necessaries. Many states
have a statutory or common law spousal necessaries rule. A necessaries rule obligates spouses to support
each other during the marriage generally, or may limit the obligation to medical necessaries. Such an
obligation may survive divorce and may not be waivable as in many cases it creates a cause of action in
favor of a third-party provider. 17
Enforceability of support waiver with respect to resident alien spouse. When the support claimant is a
sponsored immigrant, and the spouse is the sponsor, the claimant may be able to obtain some limited
support notwithstanding an otherwise valid waiver in a premarital agreement. A person who petitions for
admission of a spouse or fiancé(e) as a family member will sign Immigration and Nationality Act (INA) Form
I-864 as the sponsor. 18 INA Form I-864 is a contract between the sponsor and both the sponsored
immigrant and the U.S. government under which the sponsor promises to provide support to the immigrant
sufficient to maintain him or her at 125% of the federal poverty line. The sponsor's obligation terminates
when the immigrant becomes a U.S. citizen, completes 40 quarters of covered employment in the Social
Security system, or permanently departs the U.S., or on the death of either party.
19
Divorce does not terminate the sponsor's obligation. The immigrant-spouse is entitled to enforce his or her
right to support despite a contractual waiver. 20 The sponsored immigrant has no obligation under the I-864
to seek or obtain employment to mitigate damages, or to notify the sponsor when one of the termination
events has occurred. 21 The termination events do not include remarriage or cohabitation.
22
Enforceability of spousal support waiver in domestic violence proceeding. A common feature of state
domestic violence statutes is a provision for an award of support as part of the spectrum of relief a court
may afford the victim. 23 A court may determine on public policy grounds that a law of this type supersedes
a contractual waiver of support. There appears to be no reported case where a court ruled on such an
award. A court in a second-look state could make an award if otherwise warranted based on a finding of
changed circumstances or unconscionability. 24 The UPMAA expressly addresses this issue. It provides
that a term in a premarital agreement is unenforceable that "limits or restricts a remedy available to a victim
of domestic violence." 25
Alimony and tax consequences
When a premarital agreement provides for payment of alimony, counsel needs to consider tax
consequences at the drafting stage. Many payors want alimony payments to be deductible. To qualify as
deductible alimony:
(1) The payments must be made in cash.
(2) They must be made under a divorce or separation instrument.
(3) They must terminate on the death of the payee.
Reprinted with permission from Thomson Reuters Tax & Accounting
(4) They cannot be child support.
(5) The parties must file separate tax returns.
26
The Code defines a divorce or separation instrument as: "(A) a decree of divorce or separate maintenance
or a written instrument incident to such a decree, (B) a written separation agreement, or (C) a decree ...
requiring a spouse to make payments for the support or maintenance of the other spouse." 27 A premarital
agreement is not a separation agreement. 28 In order to get the intended tax treatment, the agreement can
provide for one of the following:
•
The payor will be obligated to begin making payments on or after the date the parties sign a separation
agreement, or a party obtains a court decree, to carry out the alimony obligation.
•
Until execution of a separation agreement or entry of a decree, the payor will pay a reduced
nondeductible amount, as determined at that time by his or her CPA.
•
The agreement could predetermine a lower nondeductible amount payable until there is a divorce or
separation instrument, followed by the higher deductible payment.
•
Parties could expressly opt out of alimony treatment entirely.
29
Divorce and child custody
Statutes and case law uniformly preclude parties to a premarital agreement from contracting to divest a
court of authority to make or modify custodial arrangements for a minor child upon separation or divorce.
30
Parties may wish to have the agreement acknowledge their intent that they will have joint legal or shared
physical custody of a child. Such a provision will not bind a court in a future custody dispute.
31
However, it
will generally be severable from provisions regarding property and spousal support; thus, its
unenforceability will not affect the validity of the agreement as a whole.
Some premarital agreements provide for a spouse to retain exclusive rights to an existing residence, or give
one spouse a right to buy out the other's interest in a residence, in the event of a marital separation. The
right to evict a spouse can distort the resolution of custody of a child by giving one spouse an unfair
advantage as it could force a parent out of the home prematurely. A provision for spousal eviction could be
qualified so as to forestall the obligation to move until a court has made a ruling on temporary or permanent
custody.
Financial provisions for children
A contract will not divest a court of authority to order a parent to provide appropriate support for a minor
Reprinted with permission from Thomson Reuters Tax & Accounting
child upon separation or divorce. 32 An agreement that requires less than the law requires will not preclude
the court from ordering a parent to meet his or her threshold obligation. By contrast, parties may enter into
an enforceable agreement that expands the financial rights of a child and the financial obligations of one or
both parties to the child in the event of separation or divorce. Thus, parties may contract to provide for
payment of post-majority periodic support to a custodial parent, to pay for college, or to make provisions for
a child after the death of a parent.
To the extent parties choose to contract beyond the scope of the state-mandated duty of minority support,
their obligations are governed exclusively by the law of contracts.
33
A court will not relieve a payor who
contracts to pay for the benefit of a child an amount that may in retrospect appear to be too generous, that
the party later comes to regret, or that is rendered burdensome by changed circumstances.
Same-sex couples and divorce
In marriage equality states, a same-sex premarital agreement will be governed by the same validity criteria
as that of an opposite-sex couple. Thus, a migratory same-sex couple who live in a marriage equality state
will face the same uncertainties about issues such as enforcement of a spousal support waiver and
application of higher standards for validity or a second look at divorce in a forum state other than that of their
contractual choice of law.
A same-sex couple who separate while living in a nonrecognition state face a host of challenges. These
include a court refusing to enforce the premarital agreement as an otherwise valid contract and the lack of a
forum to dissolve the marriage and obtain necessary orders to divide retirement benefits. The drafting
attorney can anticipate some problems. The following text addresses the problem of consideration for the
contract when a court may deem the marriage alone insufficient:
Waiver of other Rights and Claims. The parties intend and agree that this Agreement,
and any amendment thereto, or supplemental or additional contract or other instrument
they may execute, shall completely define their property and support rights upon death or
dissolution, whether or not their marriage is recognized as valid. They acknowledge that
courts have recognized various legal claims that may arise from a nonmarital
cohabitation relationship upon dissolution or the death of one party, including, but not
limited to, oral contract, business partnership, unjust enrichment, and constructive trust.
They agree and intend to waive all such claims and that their property and support rights
shall be governed only by this Agreement, and any other or additional written agreement,
or other instrument, such as a property deed or title, they may subsequently enter into
with each other.
Reprinted with permission from Thomson Reuters Tax & Accounting
The following text addresses the forum problem:
Consent to Personal Jurisdiction. The parties recognize that if they separate, it is in their
mutual best interests to be able to obtain a divorce from the bond of matrimony with a
minimum of expense and inconvenience. Accordingly, in the event of a separation where
the parties are living in a state whose courts will not grant a divorce, and in the further
event that one party moves to a state or jurisdiction that will grant a divorce, the other
spouse hereby consents to the personal jurisdiction of the courts of such state, subject to
the following:
i. such consent is limited to personal jurisdiction for the sole purpose of granting a divorce
and enforcing the terms of this Agreement;
ii. such consent shall not extend to an adjudication of validity of this Agreement, nor to
enforceability of any provision herein, unless the nonresident spouse expressly consents
to such jurisdiction;
iii. the spouse who is not a resident in the dissolution state shall have no obligation to
appear in person and, accordingly, the parties shall consent to entry of an order
permitting him/her to appear by telephone, video, or other remote means, or by
deposition.
Religious divorce
Parties who for religious reasons may need to obtain an ecclesiastical divorce or annulment in the event the
marriage ends in a civil divorce, may wish to include a provision obligating the other party either to provide
a religious divorce or to appear before a religious tribunal. Courts have generally held that secular
provisions of a religious marriage agreement may be enforced in a civil court.
34
Courts have analogized
such provisions to a contractual provision for arbitration or other form of alternative dispute resolution.
35
Other cases have gone a step further and ordered a husband to comply with an agreement to grant the wife
a religious divorce. 36
Enforceability of contractual waiver of fees in divorce
The "American Rule" holds that each party to a legal dispute must bear his or her own legal fees and costs
of litigation. In the domestic relations arena, however, statutes and appellate decisions have carved out
many exceptions, permitting a judge to order one party to pay some or all of the fees and costs incurred, or
to be incurred, by the other party. Most significantly, in the absence of a valid contractual waiver, a court
Reprinted with permission from Thomson Reuters Tax & Accounting
may be able to order the economically stronger party to advance monies to the weaker party to enable the
weaker party to litigate the validity of the agreement.
A waiver of fees and costs that may be incurred at divorce is generally enforceable under the UPAA and in
the majority of non-UPAA states. Most courts that have ruled on a fee request made by a spouse to
challenge the validity of an agreement have held a contractual fee waiver to control.
37
General validity of a fee waiver does not mean a court can never make a fee award. Some courts have held
that a lawyer's fee waiver is not enforceable if unconscionable at divorce even where the agreement as a
whole is upheld. 38 In a minority of states, courts refuse to enforce fee waivers on the theory that the party
disadvantaged by the premarital agreement should not have to forgo the opportunity to litigate his or her
claim due to lack of funds. 39 In states where judges have more discretion to award spousal support over a
waiver, some courts have held the obligation to pay attorney's fees springs from the spousal support
obligation.
Even when there is no dispute about the validity of a premarital agreement, divorcing parties may incur fees
to resolve a dispute about their obligations or rights under the agreement. Courts in some states have
interpreted their statutory provisions for fee shifting to permit an award to enable a weaker party to litigate
his or her rights, despite a contractual waiver, when there is a significant disparity in resources. 40 Other
courts give effect to a waiver if the agreement is valid as a whole.
41
Some courts have interpreted a fee waiver not to apply to litigation of subjects not governed by the
agreement, such as custody and child support. 42 An Illinois case, Marriage of Best, 43 held that a premarital
agreement waiver of lawyer's fees for litigation of custody and child support violated public policy and was
therefore unenforceable. Similarly, courts have held a contractual fee waiver inapplicable to litigation of
spousal support where such a claim was nonwaivable or had not been waived, and to litigation of a claim for
temporary support or separate maintenance where a waiver of these rights was unenforceable. 44
It will often be in a stronger party's interest to include a waiver of legal fees. A lawyer for a disadvantaged
party should consider including a provision that makes it clear that the waiver does not apply to fees and
costs that may be incurred to determine custody or child support.
Divorce and the incapacitated client
A variety of circumstances could motivate a guardian of an incapacitated adult who has a premarital
agreement to file for divorce. In Tillman v. Tillman, 45 the couple had a premarital agreement that obligated
the husband to provide for the wife's expenses during the marriage. Both husband and wife were
incapacitated and had guardians. The husband was in a nursing home. The wife's guardian petitioned the
court to enforce the husband's obligation under the premarital agreement. His guardian filed for divorce
Reprinted with permission from Thomson Reuters Tax & Accounting
because the husband would run out of money if he had to keep supporting both of them, and would be
forced out of a good nursing home into one that would accept Medicaid. Nonetheless, his guardian could
not maintain the suit because Indiana law did not grant a guardian authority to maintain an action for
divorce.
Even in states whose statutes permit a guardian to file for divorce on behalf of a ward, there can be
obstacles. Where state divorce law requires a finding of intent to permanently separate, an incapacitated
ward may not be able to form the necessary intent. 46
Dispute resolution through binding arbitration
Parties may wish to consider a provision for binding arbitration of a future dispute. An agreement for binding
arbitration is generally enforceable. Binding arbitration can provide a speedier resolution and will afford
privacy. A variety of issues under a premarital agreement may be appropriate for binding arbitration: a
dispute about valuation of an asset subject to the agreement, construction of the agreement, or a claimed
breach. It can also be appropriate to resolve an issue left open by the agreement, such as the particulars of
allocation of property subject to the agreement.
An arbitration clause may be especially useful for a same-sex couple whose access to the courts may be
limited if their dispute must be resolved in a state where their marriage is not recognized. It may not be
useful for a younger couple who are likely to have children. Some issues in a divorce-custody and child
support-may have to be resolved in court in any event; proceedings in two different forums may not be in
their best interests.
A provision for binding arbitration to determine validity of a premarital agreement is not a good idea. The
right to appeal from an arbitrator's ruling is extremely limited. The proponent of the agreement is likely to be
better served by retaining access to the appellate courts if the trial judge gets it wrong.
1
See Griffin v. Griffin, 94 P3d 96 (Okla. Civ. Ct. App., 2004); Baker v. Baker, 622 So 2d 541 (Fla. Dist. Ct.
App., 1993).
2
Wis. Stat. Ann. §767.255(3)(l); Estate of Benker, 331 NW2d 193 (Mich., 1982).
3
Reprinted with permission from Thomson Reuters Tax & Accounting
DeMatteo v. DeMatteo, 762 NE2d 797 (Mass., 2002); Gant v. Gant, 329 SE2d 106 (W. Va., 1985).
4
See Hardee v. Hardee, 585 SE2d 501 (S.Car., 2003).
5
See e.g., Howell v. Landry, 386 SE2d 610 (N.Car. Ct. App., 1989) (presentation of premarital agreement
to wife night before parties' December 31 departure for Las Vegas to get married insufficient to demonstrate
duress where no evidence she was unable to get legal advice on following day before flight).
6
612 SE2d 469 (S.Car. Ct.App., 2005)
7
See Cannon v. Cannon, 865 A.2d 563 (Md., 2005).
8
UPMAA §9(f). The UPMAA has alternative language that can be adopted in states that want to retain the
second-look.
9
Restatement Second, Conflict of Laws §187.
10
511 A2d 1257 (N.J. Super., 1986).
11
21 SW3d 117 (Mo. Ct. App., 2000).
12
Reprinted with permission from Thomson Reuters Tax & Accounting
628 SE2d 546 (Va. Ct. App., 2006).
13
UPAA §6(b); Sims v. Sims, 685 SE2d 869 (Va. Ct. App., 2009).
14
See Sailer v. Sailer, 764 NW2d 445 (N.Dak., 2009); Osborne v. Osborne, 428 NE2d 810 (Mass., 1981).
15
Colo. Rev. Stat. §14-2-307(2); Cal. Fam. Code §1612; Gross v. Gross, 464 N.E.2d 1362 (Ohio, 1988).
16
Restatement Second, Conflict of Laws §187(2)(b).
17
See Recovery Resources, LLC v. Cupido, 818 NW2d 787 (N.Car., 2012).
18
8 U.S.C.A. section 1183a(a)(1); and see Sheridan, "The New Affidavit of Support and Other 1996
Amendments to Immigration and Welfare Provisions Designed to Prevent Aliens from Becoming Public
Charges," 31 Creighton L. Rev. 741 (1998).
19
8 U.S.C.A. sections 1183a(a)(2), (3)(A) and (B).
20
Moody v. Sorokina, 40 App Div 3d 14, 830 NYS2d 399, 2007 NY Slip Op 947, 2007 WL 294218 (App. Div.,
2007); Cheshire v. Cheshire, 2006 U.S. Dist. Lexis 26602 (D.M.D. Fla., 05/04/2006).
21
Reprinted with permission from Thomson Reuters Tax & Accounting
Carlborg v. Tompkins, 2010 U.S. Dist. Lexis 117252 (W.D. Wis., 11/3/2101); Cheshire v. Cheshire, supra
note 20.
22
8 U.S.C.A. sections 1183a(a)(2) and (3).
23
See, e.g., Code of Maryland, Family Law §4-506(d)(9) (protective order may include "emergency family
maintenance necessary to support any person eligible for relief....").
24
See Hutchison v. Hutchison, 2009 Mich. App. Lexis 1594 (7/28/09) (unpub.) (husband's physical abuse of
the wife warranted voiding premarital agreement and award of alimony). VanWagner v. VanWagner, 868
N.E.2d 924 (Ind. Ct. App., 2007) (in divorce proceeding, husband's domestic violence warranted temporary
support over waiver in premarital agreement).
25
UPMAA §10(b)(2).
26
Section 71.
27
Section 71(b)(2).
28
Reg. 1.71-1(b)(6), Example 2; Halsey v. Halsey, 296 App Div 2d 28, 746 NYS2d 25, 2002 NY Slip Op
5952, 2002 WL 1687130 (App. Div., 2002).
29
Section 71(b)(1)(B).
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30
See Restatement Second of Contracts §191 (1981); Md. Code Ann., Fam. Law §8-103(a) (court may
modify provision of marital agreement relating to custody of minor child).
31
Combs v. Sherry-Combs, 865 P2d 50 (Wyo., 1993); Edwardson v. Edwardson, 798 SW2d 941 (Ky.,
1990); Osborne v. Osborne, 428 NE2d 810 (Mass., 1981).
32
See Uniform Premarital Agreement Act §3(b) (1983) ("The right of a child to support may not be adversely
affected by a premarital agreement."); In re C.G.G., 946 P2d 603 (Colo. Ct. App., 1997); Edwardson v.
Edwardson, 798 SW2d 941 (Ky., 1990); Huck v. Huck, 734 P2d 417 (Utah, 1986).
33
Treadaway v. Smith, 479 SE2d 849 (S.Car. Ct. App., 1996).
34
Akileh v. Elchahal, 666 So. 2d 246 (Fla. Dist. Ct. App., 1996).
35
Avitzur v. Avitzur, 446 NE2d 136 (N.Y., 1983).
36
Scholl v. Scholl, 621 A2d 808 (Del. Fam. Ct., 1992); Minkin v. Minkin, 434 A2d 665 (N.J., 1981).
37
See Hardee v. Hardee, 558 SE2d 264 (S.Car. Ct. App., 2001); Taylor v. Taylor, 832 P2d 429 (Okla. Ct.
App., 1991).
38
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See Marriage of Ikeler, 161 P3d 663 (Colo., 2007) (enforcement of fee waiver in premarital agreement
may be unconscionable and therefore unenforceable at divorce).
39
See Urbanek v. Urbanek, 484 So 2d 597 (Fla. Dist. Ct. App., 1986); Hill v. Hill, 356 N.W.2d 49 (Minn. Ct.
App., 1984).
40
See Rosenbaum-Golden v. Golden, 884 NE2d 1272 (Ill. Ct. App., 2008) (fee award to wife did not violate
premarital agreement waiver where award was advance against marital assets and husband had much
greater resources).
41
See Hardee v. Hardee, 585 SE2d 501 (S.Car., 2003).
42
See In re Marriage of Burke, 980 P2d 265 (Wash., 1999).
43
901 NE2d 967 (Ill. Ct. App., 2009); see also Marriage of Lane, 2011 Cal. App. Lexis (unpub.) (1/13/11)
(fee waiver did not encompass fees for custody and child support, and had it done so, waiver would have
violated public policy).
44
Walker v. Walker, 765 NW2d 747 (S.Dak., 2009); Lebeck v. Lebeck, 881 P2d 727 (N.M. Ct. App., 1994).
45
2013 Ind. App. Lexis 326 , transfer den. 995 N.E.2d 620 (Ind., 2013).
46
Andrews v. Creacey, 696 SE2d 218 (Va. Ct. App., 2010).
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