When a couple decides to marry, their thoughts very naturally turn to happy things—like the well-wishes of family and friends, wedding planning, and dreams of a warm and romantic honeymoon destination. But before they marry, it’s prudent for each prospective spouse to consider his or her financial situation and whether it would be wise to enter into a prenuptial agreement.
A prenuptial agreement is a legally binding contract that is made “in contemplation of marriage,” meaning that two people negotiate and sign the agreement with a view toward what will happen when they marry. The agreement has to be signed before they get married. It lays out a plan for how the spouses will divide up their assets if they should happen to divorce or, sometimes, if one of them dies. Prenuptial agreements are concerned with the division of property, which is defined as any interest in real property (like land or buildings) or personal property (tangible objects like jewelry and automobiles or abstract objects like retirement accounts).
Prenuptial agreements have to be finalized before a marriage occurs. They become effective as soon as the parties are legally married. Prenuptial agreements are also known as premarital or antenuptial agreements in some jurisdictions.
If any of the following scenarios apply, couples should consider getting a prenuptial agreement:
This list is non-exclusive. If you have any doubts about whether you should enter into a prenuptial agreement, contact an experienced Utah family law attorney for more advice.
Prenuptial agreements in Utah can include some or all of the following issues:
Utah law specifically states that “the right of a child to support, health and medical provider expenses, medical insurance, and child care coverage may not be affected by a premarital agreement.” This means that premarital agreements can’t limit or cap the amount of child support that one parent would have to pay to the other in the event of a divorce and change in child custody. The reason for this is that the right to child support belongs to the child, not the parent. Child support money may technically be transferred by one parent to another, but the legal reality is that the money can only be used to support the child. Also, child support awards must be modified if financial circumstances change. Courts must award the amount of child support that is fair and reasonable under the circumstances, regardless of any prenuptial agreement by the parents.
Similarly, child custody can’t be decided in advance via a prenuptial agreement. This is because child custody awards can only be decided by family law judges, who have to look at the facts and circumstances of each unique case and render a decision based on the child’s best interests.
None of this means that a prenuptial agreement can’t contain an agreement about child support and custody. If the parties divorce and decide to abide by the terms of their prenuptial agreement, then they can self-enforce provisions about child custody and support. However, if they disagree and wind up in family court, a judge will give little to no consideration to what the prenuptial agreement says about these topics.
Finally, Utah law says that “parties to a premarital agreement may contract with respect to the modification or elimination of spousal support.” This means that a prenuptial agreement can include terms to establish the type, amount, and duration of alimony to be awarded if the spouses divorce, or they can even eliminate it altogether. However, if the alimony terms of a prenuptial agreement would result in one spouse becoming impoverished and becoming eligible for public assistance, the court will overlook the language of the agreement and order the other spouse to pay alimony to the extent necessary that the poorer spouse is no longer eligible for assistance.
In 1994 Utah adopted the Uniform Premarital Agreement Act (“UPAA”). The UPAA was initially developed in 1983 by the National Conference of Commissioners on Uniform State Laws in an attempt to harmonize the law surrounding prenuptial agreements and to ensure legal conformity across the fifty states. To date, most but not all states have adopted the UPAA.
The UPAA spells out what should be present in a legally enforceable prenuptial agreement, and these provisions have been adopted into Utah’s state laws. For a prenuptial agreement to be legally valid in Utah, all of the following requirements must be satisfied:
Prenuptial agreements are legally unenforceable if any of the following statements are true:
Whether a prenuptial agreement is unenforceable is a matter of law that has to be decided by a judge.
Yes. After the parties are married, they can revise or even revoke the prenuptial agreement. No consideration is necessary to support this second agreement. Both parties simply have to agree and the new agreement must be in writing.