Everyone has heard of a “pre-marital agreement,” but few know that you can just as easily enter into the same agreement AFTER you are married!

Pre-Marital agreements are governed by the Utah Uniform Premarital Agreement Act and Common Law, while Post-marital agreement are mainly governed by Common Law by way of common contract principles.  Both before and after marriage, agreements can be made by the parties that outline what should occur in the case of a potential divorce or separation.

Before marriage, parties can enter into a agreement on how to deal with property, spousal support, insurance benefits, choice of law (where a law suit will take place), and other issues.  This pre-marital agreement is enforceable only after the marriage takes place, and its enforcement can be contingent on the happening of a stated event such as separation, divorce, or death.

What can’t I put in the agreement?  Parties cannot make any agreement contingent on an event which is considered a crime or against public policy, such as sexual preferences/acts/service.  Additionally, parties cannot EVER contract around paying or receiving child support, a child’s medical support/insurance, or care.  These provisions will not void your agreement, but the court will strike the illegal or immoral provisions and enforce what remains.

What are the requirements to have an enforceable agreement?  By statute, the agreement must be in writing, must be signed by BOTH parties, and does not require consideration.  Consideration is an exchange of something of value by each (ie. money or promise).

Are there different requirements for a POST-nuptial agreement?  Yes.  Unlike a pre-nuptial agreement, a post-nuptial agreement does require the exchange of consideration to be enforceable under general contract principles.  Other than that, the requirements are identical to pre-nuptial requirements.

How can I cancel or change this agreement? A pre or post nuptial agreement can only be rescinded or altered in writing by both parties.

What can I do to contest or fight the enforcement agreement? Start with the basics and look at the type of agreement.  There are often numerous ways of attacking a contract that was poorly drafted or has been breached, ignored, or was never valid to begin with.  You are likely to need the advice of counsel in this regard.

Utah Family Law Blog