Under the Uniform Premarital Agreement Act (UPAA), to make an agreement unenforceable, a party must show at least one of the following:
(a) Involuntariness (fraud, duress, coercion); or
(b) Unfairness or unreasonableness together with lack of reasonable knowledge or disclosure.
1. Voluntary element
The parties must enter into the contract voluntarily (i.e., free of fraud, duress, or coercion).
Courts consider factors such as time-pressure and the opportunity to be represented by independent counsel.
Exam Tip: The parties need not actually seek legal representation to make the agreement voluntary.
2. Fair and reasonable element
The court will look for factors such as duress, undue influence, misconduct by a mediator, and whether the party to be charged had independent representation.
The courts will also consider the fairness of the terms themselves.
Most courts evaluate fairness at the time of execution of the contract, and a minority of jurisdictions will also evaluate it at the time of enforcement.
Note: The current trend is for courts to enforce contractual agreements that may not be fair as long as there has been fair disclosure.
3. Full disclosure
Premarital agreements must provide full disclosure of financial status, including income, assets, and debts of all parties.
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