The drafters of the Uniform Premarital and Marital Agreements Act (“UPMAA”) elected to use the term “marital agreement” for the type of agreement discussed here. The UPMAA defines a marital agreement as “an agreement between spouses who intend to remain married which affirms, modifies, or waives a marital right or obligation during the marriage or at separation, marital dissolution, death of one of the spouses, or the occurrence or nonoccurrence of any other event.”3
A postmarital amendment to a premarital agreement or an amendment to a prior postmarital agreement is itself a marital contract. It creates, in effect, a new contract by altering the legal rights and obligations of the parties under the prior agreement.4
At common law, spouses generally could not contract with each other.5 In In re Harber,6 a case of first impression, the Supreme Court of Arizona held a postmarital agreement executed in 1938 was enforceable when the husband died twenty-four years later. The court made clear that its holding permitted such an agreement to govern disposition of property at divorce as well as death. The Court of Appeals of Utah came to a similar conclusion in a 1990 case, D’Aston v. D’Aston,7 citing In re Harber and a number of cases from other jurisdictions.
There is now a clear trend toward general acceptance of postmarital agreements pre-determining property rights at death and divorce. In most states, spouses can do by agreement after marriage the same things they can do by agreement before marriage as to property rights. But the law regarding waiver of spousal support is less developed.
I. Uses of Postmarital Agreements
A postmarital agreement can be useful in a number of circumstances.
- Parties may wish to confirm an oral premarital agreement that would otherwise have failed under the applicable statute of frauds.8
- Parties may have wished to enter into a premarital agreement but were not able to complete negotiations and drafting before the wedding.9
- Parties may wish to ratify a premarital agreement that recited a planned wedding date that was changed after execution so as to obviate any claim that the premarital agreement was abrogated as a result of the postponement.
- Parties may wish to make alterations to the property disposition or support terms of a premarital agreement to take into account changes in circumstances since execution or to resolve a dispute about a claim of breach.10
- Parties may have entered into a premarital agreement but, because of questions about the validity of that agreement, they choose to reexecute it after the marriage.11
- Parties may wish to document their intentions regarding the effect of property transfers during the marriage or to confirm an oral understanding made after the marriage.12
- Parties may wish to document property transfers to effectuate estate planning decisions or to confirm their intention that existing wills, or wills to be executed in the future, be given effect over any spousal rights that might otherwise apply at death.13
- Parties may wish to enter into a contract to make a will that will be binding and effective over the rights of a subsequent spouse so as to protect the interests of children after the death of one spouse and a possible remarriage.14
- Parties contemplating a marital separation but intending to remain under the same roof for an indefinite period may wish to determine by contract property rights—or, in those states that permit parties to do so, support rights—in the event they later decide to live apart or divorce.15
- Parties who have separated or filed for divorce or a party who has engaged in marital misconduct may wish to settle property issues and, to the extent permitted under state law, support issues, as a condition of reconciliation or in the event the reconciliation fails.16
- Parties may wish to document their intent to cancel or supersede a premarital agreement17 or to cancel or supersede a previous postmarital agreement.18
- A party who operates a business or engages in a professional practice with significant financial exposure or potential for a personal liability claim may wish to document a division or transfer of property to protect the other spouse before any creditor claims are made.19 A spouse who may be exposed to a personal injury claim20 or a claim for medical care not covered by insurance21 may seek an agreement to segregate assets to protect the nondebtor spouse before a claim is made or a nondebtor spouse may seek an agreement to avoid the liabilities of an impecunious debtor-spouse, particularly in a community property state.22
- Parties may wish to separate their property and business interests so as to be able to deal with their own property, contract debt, and otherwise make financial decisions without the need for consent of the other spouse23 or to resolve an existing dispute about how they conducted their financial affairs.24
- Parties may be planning a move from a common law title state to a community property state, or vice versa and may wish to establish their property rights under one or the other regime.25
II. General Validity and Scope of Postmarital Agreements
A. Authority for Comprehensive Postmarital Agreements: Fourteen States
Seven states have statutes authorizing postmarital agreements and creating criteria for validity. Another seven achieve the same result by case law. New York, Texas, Wisconsin, and Virginia have statutes governing premarital and postmarital agreements that provide the same criteria for validity of both types of agreement, permitting parties to contract about property rights at both death and divorce and to fix or waive spousal support.26 Minnesota, by statute, permits a married couple to contract about anything after marriage that they could contract about before.27 Colorado and North Dakota have adopted the Uniform Premarital and Marital Agreements Act.28
Acting without express statutory authority, courts in Alabama, Connecticut, Florida, Georgia, Massachusetts, Tennessee, and Pennsylvania have held postmarital agreements generally enforceable to the same extent as premarital agreements.29 Case law in these states supports enforceability of provisions fixing or waiving spousal support at divorce under the same circumstances as apply to a premarital agreement.
B. Authority in Other States for Postmarital Agreement Regarding Property Rights at Death or Divorce
The majority of states do not have a single statute or case expressly authorizing comprehensive postmarital agreements governing property rights at death or divorce, or the right to fix or waive spousal support. Rather, in many states there is a patchwork of statutes and appellate decisions that, taken together, permit spouses to enter into a postmarital agreement conclusively defining their rights to property at death or divorce. Many states have several statutes touching on the subject of postmarital agreements, such as a probate code provision prescribing the procedure for a postmarital waiver of spousal rights at death and a divorce code provision permitting spouses to exclude property from the marital estate by contract.
1. Married Women’s Property Acts.
Married women’s property acts, ending the historic disabilities of married women, permit married women to contract with their husbands.30 Statutes permitting spouses to contract with each other without specifying or limiting the subjects of such contracts appear to permit spouses to enter into a postmarital agreement determining their rights at death or excluding property from the marital estate at divorce.31
2. Statutes and Case Law Expressly Permitting Postmarital Agreements Excluding Property from the Marital Estate at Divorce.
Many states’ equitable distribution statutes permit spouses to enter into a valid contract to exclude property from the marital estate at divorce.32 Statutes of this type do not state that such an agreement, insofar as it disposes of marital property at divorce, must be incident to a separation or divorce. Thus, they appear to permit parties not contemplating an immediate separation to execute an agreement regarding disposition of property in the event of a future separation.
3. Community Property Agreements.
Spouses in community property states may execute an agreement to alter the status of property.33 In Washington, Texas, Idaho, and Louisiana, spouses may by agreement reclassify existing community property as separate property or may opt out of the community property regime as to property to be acquired in the future.34 Texas and Washington statutes permit spouses to convert what would otherwise be separate property into community property by postmarital agreement.35
4. Statutes and Case Law Expressly Permitting Spouses to Contract Regarding Wills or Rights at Death.
Many states have a statute similar to or based on section 2-213 of the Uniform Probate Code that expressly permits parties to contract before or after marriage to waive or limit their rights to property at death.36 Another group of states have a statute permitting a postmarital waiver of rights upon death that requires observance of rules regarding confidential relations or that there be fair disclosure of assets.37 Some states have a statute that prescribes formalities for execution of an enforceable marriage contract without identifying the permissible subjects for such an agreement. Some states with a statute of this type have broadened the definition to include agreements executed after marriage.38 In some cases, these statutes simply require that a marriage contract be in writing, or that it be in writing and acknowledged, or that it be recorded.39
Several states have a statute that provides that the rule against perpetuities does not apply to a postmarital agreement.40 These statutes mention postmarital agreements without defining the term, addressing the permissible scope, or describing the criteria for validity.
5. Statutes That Permit Postmarital Agreements Not Incident to Separation but Prohibit Waiver of Support.
Several states have a statute similar or identical to the following:
A husband and wife cannot by any contract with each other alter their legal relation, except as to property and except that they may agree, in writing, to an immediate separation and may make provision for the support of either of them and of their children during such separation.41
These statutes appear to permit a spousal contract during marriage that determines property rights at death or divorce but preclude determination of spousal support unless the agreement is incident to marital separation.
C. Minority Position: No Right to Postmarital Agreement Not Incident to Marital Separation
Ohio appears to be a minority of one in prohibiting spouses from entering into a postmarital agreement not incident to an immediate separation except to cancel a premarital agreement or confirm an oral premarital agreement. In Ohio, a statute prohibits spouses from entering into a contract that alters their “legal relations” but permits a property settlement and support agreement.42 Ohio courts have interpreted this statute to make a spousal agreement unenforceable upon divorce or after a spouse’s death unless the agreement was executed incident to an immediate separation or to confirm an oral premarital agreement.43 Ohio courts will not enforce a postmarital amendment to a premarital agreement that revokes a spouse’s waiver of inheritance rights.44 Such a partial revocation is prohibited by Ohio Revised Code section 3103.06, although a postmarital revocation of a premarital agreement is enforceable if it revokes the agreement in its entirety.45
D. Minority Position: Postmarital Agreement Permissible at Death But Not Dissolution
Like Ohio, Nebraska stands alone in permitting spouses to enter into a postmarital agreement to govern property rights at death but not at dissolution. The former is expressly authorized by statute.46 The latter is not. In Devney v. Devney,47 the court referred to a common law prohibition, presumably the common law disability of a married woman to contract with her husband, and a public policy against such agreements because of their deleterious effect on marriages.48 It left to the legislature the decision whether to abrogate the common law.49
E. Permissibility and Scope Undetermined
In the states that lack some combination of statutory and case authority clearly authorizing spouses to enter into an agreement governing property rights at death or divorce, the permissibility and scope of such agreements is undetermined at this time.
Iowa has no statute expressly authorizing spouses to enter into a postmarital agreement. In Estate of Shaffer,50 an Iowa court held that such an agreement was void as a waiver of the wife’s statutory right to elect against the husband’s will and her right to seek a spousal allowance. Other Iowa cases hold that a reconciliation agreement, where estranged spouses agree to continue the marriage and structure their financial relationship in the event of a future divorce, is enforceable.51 Spouses in Iowa can also amend or cancel a premarital agreement.52
In Oklahoma, there are several code provisions that appear to permit a postmarital agreement for disposition of property at death or divorce.53 However, the cases are in conflict.54
Michigan case law authorizes spouses not contemplating divorce to enter into an enforceable agreement regarding property rights at death.55 Michigan case law also supports enforcement of a postmarital agreement executed by spouses who have separated and who intend to reconcile.56 An agreement executed by a couple who were not separated was void as against public policy in Wright v. Wright,57 where it created an economic incentive to abandon the marriage. Whether Michigan courts will enforce a postmarital agreement at divorce where the terms are more equitable is an open question.
III. Spousal Support and Postmarital Agreements
Parties to a postmarital agreement may wish to predetermine spousal support by a blanket waiver of all support claims or by a provision fixing the amount and duration coupled with a waiver of all other claims for post-divorce support. The law regarding treatment of such a waiver in a postmarital agreement is undeveloped in the majority of states. In the minority of states with statutes that govern both premarital and postmarital agreements, spouses may contract regarding spousal support under the same rules as govern spousal support in a premarital agreement.58
In another minority of states, parties to a premarital agreement may not predetermine or waive spousal support.59 In these states, when presented with the question, courts are likely to hold that a postmarital agreement not incident to separation is similarly not binding on a court as to spousal support, but there is little guidance at present. North Carolina, a Uniform Premarital Agreements Act (“UPAA”) state, permits parties to a premarital agreement to waive spousal support. Another statute appears to preclude such a waiver in a postmarital agreement not incident to separation.60
Case law in Alabama, Florida, Indiana, Pennsylvania, Tennessee, and Georgia suggests their courts will permit a postmarital agreement to predetermine spousal support conclusively in the event of a future divorce proceeding.61 However, the law in these states is undeveloped. Adams v. Adams,62 a Pennsylvania case, for example, involved a comprehensive separation agreement, not a postmarital agreement, but the Pennsylvania court applied the same validity criteria as it applies to premarital agreements and the language of the opinion was expansive enough to suggest that all three types of agreement would be treated the same way insofar as such an agreement addresses spousal support. Similarly, in Tibbs v. Anderson,63 the Alabama court looked to premarital agreement cases for the standards by which to judge validity of postmarital agreements, including cases that expressly permit premarital support waivers. However, the question of a support waiver at divorce was not before the court. In Hoyt v. Hoyt,64 a Tennessee case, the issue was enforceability of a reconciliation agreement providing for disposition of property and alimony in the event the reconciliation proved unsuccessful. The Tennessee court upheld the agreement, including the provisions regarding spousal support, but the gap between the execution of the agreement and the filing of a divorce action was less than a year.
In Casto v. Casto,65 the Florida court said: “Postnuptial agreements regarding alimony and marital property are properly enforceable in dissolution proceedings.”66 The Casto court described the agreement at issue there variously as a postnuptial agreement and a separation agreement. The agreement was executed a year before suit for divorce was filed, but the parties were separated at the time. In subsequent cases,67 Florida courts have distinguished litigation settlement agreements from what they characterized as the postnuptial agreement in Casto. In doing so, they reaffirmed that the validity requirements for premarital and postmarital agreements are the same in Florida without distinguishing between a postmarital agreement executed during an ongoing marriage and one executed incident to separation. The Casto line of cases suggests Florida courts would give effect to a postmarital agreement made by parties to an ongoing marriage and not incident to a planned separation. However, none of the reported Florida cases actually involved such an agreement.
In the majority of states, there is not yet a significant body of case law regarding the general enforceability of a postmarital support waiver in a contract not incident to immediate separation or divorce, nor is there much guidance about the circumstances under which a court may refuse to enforce such a waiver. Courts presented with the issue may look for guidance to premarital agreement cases, or in states with the UPAA, may analogize such agreements to premarital agreements and adopt the UPAA approach. Indeed, the most significant feature of both types of agreements, insofar as they incorporate spousal support waivers, is that such a waiver may precede a divorce filing by many years, during which time circumstances may have changed in unanticipated ways. By contrast, a separation agreement is generally made at a time when relevant circumstances are known. Thus, premarital agreement case law seems like the more relevant guide to assess the risk that such a waiver will not hold up in the event of a divorce.
In some states, courts have authority to modify alimony provisions of a separation agreement without a finding of unconscionability. Courts in these states may well decide to treat such a provision in a postmarital agreement in a similar manner. Thus, a postmarital agreement provision waiving or otherwise limiting a spouse’s support rights at divorce may be deemed modifiable in the event of changed circumstances or otherwise in accordance with the principles that would govern modifiability of support provisions of a separation agreement.68 Until clear authority emerges, the viability of postmarital agreement support waivers in these states will be uncertain.
IV. Criteria for Validity of Postmarital Agreements
To be valid, a postmarital agreement must have been executed voluntarily by parties with capacity to contract and must be free of fraud, coercion, duress, or undue influence.69 In some states, the criteria for validity of a postmarital agreement are identical to those applied to determine validity of a premarital agreement. Other states judge postmarital agreements by a higher standard. In those states that apply a higher standard to the evaluation of a postmarital agreement than to a premarital agreement, the most significant factors are the application of principles of confidential or fiduciary relationships and the basic contract principle that there must be consideration for the contract. Universally, the marriage itself is deemed adequate consideration for a premarital agreement. Once parties are already married, therefore, something more may be required to satisfy the requirement for consideration.
B. Same Validity Criteria as Premarital Agreement
Those states with a statute expressly authorizing comprehensive postmarital agreements provide that the same criteria apply to determine validity of both premarital and postmarital agreements.70 Courts in a number of states without express statutory authority have analogized postmarital agreements to premarital agreements and have held that the same validity standards apply to both.71 A number of states have enacted provisions of the Uniform Probate Code that provide for postmarital agreements waiving spousal rights at death to be governed by the same criteria as the UPAA.72 The Uniform Premarital and Marital Agreements Act, adopted in Colorado and North Dakota, authorizes comprehensive postmarital agreements under the same criteria as premarital agreements.73
C. The Uniform Premarital and Marital Agreements Act
The Uniform Law Commission (“ULC”), approved the UPMAA in 2012. The UPMAA expressly authorizes marital agreements74 to determine property rights at death or dissolution, permits parties to fix or waive alimony, and treats premarital and marital agreements alike in their permissible scope and in the criteria for validity. The ULC intended for the UPMAA to replace the UPAA.
To date, only two states, North Dakota and Colorado, have adopted the UPMAA. That is unfortunate. The UPMAA is a significant improvement over the UPAA, which permits enforcement of a premarital agreement that was unconscionable at execution. Practitioners and parties would benefit from a uniform act that mandates a fair process, expressly authorizes agreements made during the ongoing marriage, and provides for consistent standards for validity and scope of both types of agreement. Moreover, parties and counsel in states that have not codified their criteria for validity or the permissible scope of a premarital or marital agreement would benefit from a readily accessible code provision.
The UPMAA provides “more robust procedural fairness protections than does the UPAA”75 but does not require a fair result. Rather, it leaves parties free to negotiate the substantive terms without interference unless the agreement was unconscionable at execution. The criteria for validity of both types of agreement under the UPMAA are in section 9, Enforcement, which provides:
(a) A premarital agreement or marital agreement is unenforceable if a party against whom enforcement is sought proves:
1. the party’s consent to the agreement was involuntary or the result of duress;
2. the party did not have access to independent legal representation under subsection (b);
3. unless the party had independent legal representation at the time the agreement was signed, the agreement did not include a notice of waiver of rights under subsection (c) or an explanation in plain language of the marital rights or obligations being modified or waived by the agreement; or
4. before signing the agreement, the party did not receive adequate financial disclosure under subsection (d).
. . .
(f) A court may refuse to enforce a term of a premarital agreement or marital agreement if, in the context of the agreement taken as a whole[:]
[1.] the term was unconscionable at the time of signing[;] or
2. enforcement of the term would result in substantial hardship for a party because of a material change in circumstances arising after the agreement was signed].
Importantly, the UPMAA does not permit enforcement of an agreement that was unconscionable at execution. Fourteen states permit a court at divorce (but not death) to consider whether a premarital agreement has become unconscionable since execution and to alter the terms.76 Another six permit such a second look only as to spousal support.77 The bracketed text above is intended for adoption in states that wish to retain the second look and apply it to both types of agreement.
Although the text of section 9(f) only expressly authorizes a court to refuse enforcement of an unconscionable term, the Comment tells us that section 9(f) is not meant to preclude a court from striking down the entire agreement as unconscionable.78 In addition, the challenging party’s lack of access to counsel is an independent ground on which a court may refuse enforcement.
In sum, under the UPMAA, a challenging party can prevail by proving that he or she:
- executed the agreement involuntarily or under duress; or
- did not receive financial disclosure (actual or constructive) and did not effectively waive disclosure; or
- did not have access to independent counsel; or
- did not, if unrepresented, receive a plain language explanation of rights; or
- signed an agreement that was unconscionable when executed.
Although only adopted in two states, the careful practitioner drafting either type of agreement will adhere to the UPMAA standards. Doing so enhances the likelihood that a court will uphold the agreement if challenged.
D. Close Scrutiny; Fiduciary or Confidential Relationship
In a number of states, by statute or common law, spouses in an ongoing marriage are considered to occupy a confidential or a fiduciary relationship.79 A fiduciary relationship creates “a duty on the part of the fiduciary to act for the benefit of the other party to the relation as to matters within the scope of the relation.”80 A confidential relationship may exist between the parties to a transaction where by reason of kinship or professional, business, social, or family relations, “confidence is naturally inspired, or, in fact reasonably exists.”81 A party to a confidential relationship has a right to assume the other party will act in a manner consistent with his or her welfare.82
Because parties to an ongoing marriage occupy a position of trust, they must exercise a high degree of candor about the facts relevant to the transaction and must fully disclose the existence of assets and other pertinent financial information.83 By contrast, when parties have separated and have assumed adversarial positions, any right to rely on trust is vitiated and each party is therefore separately responsible for protecting his or her interests.84
In a case of first impression, the highest court of Massachusetts gave judicial recognition to postmarital agreements, laying out criteria for validity and providing for close scrutiny at divorce. In Ansin v. Craven-Ansin,85 the agreement readily passed judicial review; there was full financial disclosure, both parties had independent counsel, and the parties negotiated the terms over a period of months with the wife demanding and getting more favorable terms. The court identified the requirements for validity as requiring court review of:
- whether each party had an opportunity for independent counsel;
- whether there was fraud or coercion;
- whether the parties made full financial disclosure;
- whether each spouse knowingly, expressly, and in writing agreed to waive the right to have a judge equitably divide property; and
- whether the terms were fair at execution and remain so at enforcement at divorce.86
The duty of full disclosure includes the duty to disclose a party’s motivation for wanting the agreement.87 A misrepresentation as to the party’s objective in seeking an agreement may undermine its validity.88 As one court observed, a married person not contemplating divorce may be less likely to investigate the bona fides of the other spouse’s actions than would a spouse who is separated or about to be separated.89 “[L]ess evidence is required in such cases to establish fraud, oppression, or deception than if the parties had been dealing at arm’s length . . . .”90
In some states, the existence of a confidential relationship does not create a presumption that an agreement was the result of undue influence.91 Rather, dominance, lack of disclosure, undue influence and other defenses to enforcement are fact questions. The party challenging enforcement must show that the other party was in a position of substantial domination.92 Such a showing merely shifts the burden of proof to the dominant spouse to show lack of fraud, duress, coercion, or undue influence. In other states, when a spouse gains an advantage as a result of a postmarital agreement, the transaction is presumed the result of undue influence.93 This merely places the burden on the party who received the advantage to show that the agreement was the product of an arm’s-length negotiation or that there was full disclosure of relevant facts.94 In either case, the confidential relationship merely allocates the burden of proof. The proponent can readily meet that burden by showing the transaction was the product of a negotiation.95
Even where governing law does not create a fiduciary relationship or where there is no legal presumption of a confidential relationship, spouses may have developed a confidential relationship as a matter of fact. The safest course of action for the proponent of a postmarital agreement is to conduct the process based on the higher standard required of a person in a confidential relationship. This should not be difficult to do. Moreover, the benefits to both parties from a fair process outweigh any additional effort or cost.
E. Financial Disclosure
As with other questions relating to standards for validity of postmarital agreements, in many states the law relating to financial disclosure is not well-developed. The Connecticut Supreme Court has ruled that spouses must give each other full financial disclosure, including values of joint and separate property, debts, and income.96 The UPMAA provides for the same obligation of financial disclosure for both types of agreement,97 as does the law in those states with comprehensive statutes governing both types of agreement. Parties to a postmarital agreement should be able to waive financial disclosure to the same extent as they could for a premarital agreement.98
F. Consideration or Fairness
Some courts have analyzed the substance of a postmarital agreement as a question of consideration, some as a question of fairness or conscionability.99 Because marriage is valuable in and of itself, no further consideration is necessary for a premarital agreement; the marriage itself is the consideration.100 Some states permit a postmarital agreement without consideration beyond the marriage itself, and some require additional consideration so that each party must get something in return for what he or she gave up by entering into the agreement.
1. No Consideration Required for Comprehensive Postmarital Agreement.
Consistent with their identical treatment of premarital and postmarital agreements, states that have, by statute, expressly authorized comprehensive postmarital agreements have provided that no consideration is required to form a valid postmarital agreement.101
2. No Consideration Required for Agreement Waiving Spousal Rights at Death.
Several states have statutes providing for postmarital agreements or other instruments that waive spousal rights at death and expressly provide that no consideration is required for such a waiver.102
3. Consideration Required for Waiver of Spousal Rights at Death.
Some states have statutes that permit waiver of spousal rights at death and expressly require fair consideration for such a waiver.103 Absent a statute or other authority expressly permitting a postmarital agreement that waives spousal rights at death without consideration, some consideration is required.104 Mutual waivers will generally suffice.105 It appears that a one-way waiver will not. The value of the consideration need not be equal or identical on each side.106
4. Consideration Required for Comprehensive Postmarital Agreement.
In the absence of express authority for a comprehensive postmarital agreement without consideration, general principles of contract law apply, and there must therefore be some consideration beyond the marriage itself.107
5. Consideration for Reconciliation Agreement.
In some states, case law appears to limit postmarital agreements to those executed when spouses are estranged or when a suit for divorce is pending and the purpose is to effect a reconciliation. However, in these states, a spouse’s willingness to attempt reconciliation is sufficient consideration.108
In states where fairness or conscionability at execution is a requirement for a valid premarital agreement, it will also be a requirement for a postmarital agreement.109 The UPMAA requires that a postmarital agreement be not unconscionable as of execution.110 This is consistent with existing statutory and case law in many states.111
Fourteen states permit a court at divorce (but not at death) to consider whether a premarital agreement has become unfair or unconscionable.112 The law governing questions of fairness of a postmarital agreement as of divorce, whether the court can consider changed circumstances, and whether changed circumstances must have been unanticipated, is undeveloped.
G. Public Policy
Historically, premarital agreements providing for divorce were void on public policy grounds because they were thought to make divorce too easy for the economically dominant spouse, usually the husband. This notion has given way to virtually universal acceptance of premarital agreements even when the result at divorce is quite harsh for the weaker party. Similarly, there is no longer any generalized public policy against postmarital agreements.113 Nevertheless, in some states, statutes or case law retain a role for public policy in favor of preserving marriage and against postmarital agreements that encourage divorce. For example, North Carolina law permits contracts “between husband and wife not inconsistent with public policy . . . . ”114 In Dawbarn v. Dawbarn,115 the North Carolina court considered a postmarital reconciliation agreement under which the husband transferred three pieces of real estate to the wife as her separate property. The husband proposed the agreement after the wife caught him in an extramarital affair. Ten years later the husband sought to have the agreement set aside on a theory that it violated public policy by giving the wife an economic incentive to leave the marriage. The court rejected this theory because the agreement made the real estate the wife’s separate property whether the parties divorced or stayed together. It appears that in North Carolina a postmarital agreement that severs the parties’ property interests into separate estates upon execution would comport with North Carolina public policy.
Public policy has occasionally played a role in other types of circumstances where one spouse sought to disavow a postmarital agreement. For example, in Stutz v. Stutz,116 the court held such an agreement was invalid as contrary to public policy. The wife had proposed the agreement, which predetermined a disposition of property and support that heavily favored the husband, in return for which the husband would agree to adopt a child.
H. Independent Legal Advice; Access to Counsel
Independent advice is not generally a prerequisite to creation of a valid postmarital agreement.117 However, a few states do require actual advice of independent counsel in some circumstances. California requires independent advice for an effective postmarital waiver of spousal rights at death.118 In Minnesota, independent counsel is required for a valid postmarital agreement determining property rights at divorce.119 Moreover, in those states where an express waiver of counsel is required for an enforceable premarital agreement120 or for a waiver of financial disclosure,121 courts, when confronted with this issue, may well impose the same requirement for a valid postmarital agreement.
The UPMAA requires that a party receiving a proposed postmarital agreement have access to independent legal representation before execution.122 This is a significant departure from prevailing law. The UPMAA does not mandate actual legal representation, only a meaningful opportunity for legal advice. As one court observed: “[I]nequality of [bargaining positions] may be cured by access to legal counsel by the party in the less advantageous bargaining position.”123 Access to legal representation necessarily means both the money to hire a lawyer and a reasonable time to find one, get advice, and consider that advice.124
I. Court Approval
In some states, a trial court at divorce has discretion about whether to approve a separation agreement on substantive fairness grounds even when the agreement meets all procedural criteria in that state for an enforceable contract.125 For example, Indiana law gives the trial court in a divorce proceeding such discretion. By contrast, the court has no discretion to reject a valid reconciliation agreement.126 Indiana cases distinguish between a postmarital reconciliation agreement, governed by the same validity criteria as a premarital agreement,127 and a dissolution settlement agreement, which the court has discretion to accept or reject.
However, the difference between the standards for approval of a dissolution settlement agreement and a reconciliation agreement appears to be almost nonexistent. A reconciliation agreement may be rejected only for fraud, duress, misrepresentation, or unconscionability.128 Similarly, a court reviewing a separation agreement must “concern itself only with fraud, duress and other imperfections of consent, or with manifest inequities, particularly those deriving from great disparities in bargaining power.”129 These standards are quite similar.130
In those states where a trial judge may review a separation agreement that is otherwise valid on procedural grounds for substantive fairness, courts may sometimes analogize a postmarital agreement, insofar as it is intended to take effect at divorce, to a separation agreement, rather than to a premarital agreement. Postmarital agreements in these states may therefore be vulnerable to revision by a judge in future divorce proceedings under some circumstances.131
Unless a statute expressly requires court approval as a prerequisite, no such approval is necessary to create an enforceable postmarital agreement if such an agreement is otherwise generally enforceable in that state.132 Louisiana is the only state that mandates court approval for a postmarital agreement to terminate the matrimonial regime.133 An agreement to partition existing community property does not require approval of a court,134 nor does a postmarital agreement to cancel a premarital agreement.135
J. Execution Formalities
Statutes in some states prescribe execution formalities beyond party signatures. For example, Minnesota’s statute requires two witnesses and notarization.136 This requirement has been strictly enforced.137
In some community property states, a postmarital agreement may not be effective to protect a spouse from a claim of a creditor for debt incurred by the other spouse unless the agreement or a memorandum thereof is recorded.138
V. Establishing the Required Elements for Validity
Voluntariness is the threshold requirement for validity of all postmarital agreements, consistent with general contract law principles. Voluntariness means that the party acted out of his or her own volition, that he or she had a meaningful choice as to whether to execute the agreement. A contract is not voluntarily executed if it is the product of fraud, duress, or undue influence.
A court may consider a number of factors in determining whether a challenging party executed a postmarital agreement voluntarily, including:
- whether the disadvantaged party got independent legal advice or had the opportunity to do so;
- whether the economically dominant party, or his or her counsel, advised the other party to get independent legal advice;
- whether the economically dominant party made adequate financial disclosure;
- whether the disadvantaged party had the opportunity to negotiate better terms than initially proposed;
- whether the parties, directly or through counsel, actually engaged in any negotiations and whether the stronger party made changes to the agreement as a result;
- whether the agreement was presented without any prior warning;
- the parties’ intelligence and education levels, prior experience, and expectations;
- the parties’ relative bargaining power in terms of their ages, sophistication, education, employment, and experience;
- whether each party had adequate time to review the agreement;
- whether each party understood the terms of the agreement;
- whether each party understood his or her marital rights in the absence of agreement.
A challenging party’s active role in shaping the terms of an agreement by, for example, proposing the original terms or negotiating for substantive changes in the proponent’s draft agreement, virtually negates a claim of duress, undue influence, or lack of voluntariness.139 Counsel for the proponent can enhance validity by encouraging an economically advantaged party to engage in an actual negotiation and to make changes as a result, and by discouraging him or her from making any threats or otherwise interfering with his or her spouse’s decision-making. Counsel for the recipient of the agreement should advise him or her that a future challenge to validity will likely fail.
B. Independent Counsel
Advice of independent counsel is the single most important factor in establishing voluntariness.140 Indeed, the presence of an actively involved lawyer may render other deficiencies in the process, the substantive terms, or the text of the agreement of no consequence. For example, in Head v. Head,141 the husband sold his major asset, his interest in the company that produced the Prince tennis racket, for seventeen times its disclosed net book value six months after execution of a marital agreement settling the wife’s challenge to the validity of their premarital agreement. However, she and her counsel were well aware that net book value understated actual value, and they had rejected a prior settlement offer as inadequate. The court rejected her claim that the settlement agreement was invalid.
Counsel for the proponent should encourage the other spouse to get independent legal advice, should assist him or her to identify competent counsel, if necessary, and should advise the client to make funds available to pay the spouse’s legal fees. Moreover, as discussed above, the proponent will be better served if there is an actual negotiation. The presence of competent counsel on both sides facilitates such a negotiation.
C. Duress, Coercion, and Undue Influence
A postmarital agreement that is the product of duress, coercion, undue influence, or overreaching is not voluntary. A finding of duress requires proof of affirmative misconduct on the part of the proponent. When parties are already married, one party’s undue pressure that forces a spouse to choose between the family and a disadvantageous postmarital agreement can constitute duress. As is the case with premarital agreements, challenges to validity usually fail.
There is no presumption that either party is the dominant party in the relationship.142 Moreover, the mere fact of dominance is not enough for a court to conclude an intraspousal transaction was the result of undue influence or coercion.143 Something more than a spouse urging the other spouse to sign a postmarital agreement is required to establish undue influence; the challenging party must show the other party had “such a superior position of dominance or advantage as would imply a dominating influence sufficient to amount to duress, coercion, or undue influence . . . .”144 Only then does a presumption of invalidity come into being, and that only shifts the burden to the advantaged party to prove voluntariness.145
When one party has been solely or primarily in charge of family financial affairs, that party’s superior position and the other party’s trust and confidence require the dominant party to take care to deal fairly in regard to their property interests.146 Similarly, when one party has become ill and as a result is unable to handle his or her own financial affairs, a spouse who assumes control must take care not to take advantage of the other party’s weakness.147 A spouse who possesses special knowledge—for example, a lawyer who practices in the area of family law or estates and trusts—should not take advantage of a spouse whose level of sophistication is significantly lower.148 When a lawyer-spouse purports to act as the attorney for the other spouse, he or she will be held to all the legal and ethical obligations of an attorney.149
When the agreement is executed as a result of marital discord, incident to reconciliation, or to resolve a financial disagreement, a court will generally find that each party acted independently, or was obligated to protect his or her own interests, or was not entitled to rely on a special confidence placed in the other. For example, in Punelli v. Punelli,150 the parties had marital difficulties for years due to disagreements about business affairs. Their postmarital agreement, executed to effect a reconciliation and with both parties represented by separate counsel, was valid.151 Such an agreement will be valid even when one party was overly generous in a moment of weakness. For example, in Jennings v. Jennings,152 the husband agreed in writing to transfer half of all his book royalties to the wife after she caught him committing adultery: “That the husband may have possessed some human frailty or compelling personal agenda will not alone relieve him of his obligations arising under a contract in which he was perfectly capable of negotiating and entering.”153 Neither the husband’s alcoholism nor his desire for reconciliation rendered the agreement unenforceable.
An actual give-and-take negotiation indicates an agreement is a contract between equals.154 Entering into a bad bargain does not constitute undue influence such as to warrant voiding an agreement. To warrant voiding the agreement, the challenging party must also prove overreaching resulted in manifestly unfair terms.155
When a spouse exploits the other spouse’s psychiatric condition that leaves him or her susceptible to undue influence or overreaching and extracts a postmarital agreement highly unfavorable to the weaker spouse, the combination of procedural irregularity and gross disparity of terms can be enough to render the agreement void.156 Similarly, when one spouse in a marriage has come to rely on and trust the other in the management of marital financial affairs, a postmarital agreement highly disadvantageous to him or her may not hold up if the dominant spouse does not handle the process in a fair manner.157
A threat to divorce if a spouse refuses a postmarital agreement can constitute duress or overreaching. For example, in Pacelli v. Pacelli,158 the husband presented the postmarital agreement, which was highly advantageous to him, as nonnegotiable. His demand for an agreement forced the wife to choose between financial security and keeping the family together. The court characterized the circumstances surrounding the execution as “inherently coercive.”159 Similarly, in Gabaig v. Gabaig,160 the husband threatened divorce, actively discouraged the wife from consulting counsel, and made no disclosure of assets. The court deemed the agreement the product of undue influence. In Fanning v. Fanning,161 the court invalidated a postmarital agreement because the husband threatened to divorce the wife and take their three children. The husband was a lawyer who had won a series of custody cases for fathers; therefore, the wife had reason to think he could make good on his threat.162 A more subtle form of misconduct, such as the creation of a misleading impression that execution of a postmarital agreement will lead to a reconciliation, may constitute undue influence. Such behavior resulted in the court voiding an agreement in Derby v. Derby.163
The cases discussed here point up the significant difference between a premarital agreement, where a party almost always has a viable choice between accepting the proposed agreement and cancelling the wedding, and a postmarital agreement where that choice is no longer available. Forcing a spouse to accept unfair terms as a condition of remaining married is a violation of trust that courts are unlikely to countenance.164
There is also an important distinction between a spouse’s demand for a postmarital agreement when the parties are living together in an ongoing marriage and where the parties are estranged or where a spouse is guilty of marital fault. When the parties are estranged, an innocent party’s willingness to reconcile that is conditional on execution of a postmarital agreement is not wrongful and therefore not duress.165 Moreover, when parties are estranged, a party is not obligated to disclose that he or she consulted a divorce lawyer during the negotiations.166 On the other hand, a postmarital agreement that is unfair to an innocent spouse and is extracted by a guilty spouse may be voided as the product of duress.167 Similarly, a spouse’s representation that he or she will never enforce the agreement or that it is merely a gesture of love may be deemed fraudulent.168
D. Fairness, Conscionability, and Adequacy of Terms
Results of a dispute over fairness often turn on whether the disadvantaged spouse got anything in return for executing a postmarital agreement, which might be characterized as a lack of consideration or as unfairness.169 For example, in In re Rogers,170 the court found the consideration was adequate for the postmarital agreement where the wife benefited from an immediate increase in income to the family resulting from the husband receiving ownership of a family business conditioned on execution of an agreement that made the business and all appreciation his separate property.
Consideration need not be substantial if it was the result of good faith bargaining.171 In some states and in some circumstances, adequate consideration for a postmarital agreement can consist of mutual waivers of rights to each other’s estate.172 A postmarital agreement that permits the parties to retain premarital, gifted, and inherited assets and provides for sharing of assets acquired with marital labor will generally hold up as fair.173 A spouse’s agreement to assume sole responsibility for debt in return for receipt of property can be sufficient consideration.174 Resolution of a dispute about the meaning of a premarital agreement or a claim of breach is sufficient consideration if the dispute is bona fide.175 By contrast, a lack of mutuality, especially if coupled with other disparities, may doom a postmarital agreement.176
In re Richardson,177 illustrates the relationship between the substantive fairness of a postmarital agreement and the circumstances of its execution. The agreement gave the wife only seven and one-half percent of the value of the marital estate after twenty-seven years of marriage. The husband misrepresented the value of his closely held corporation, interfered with the wife’s selection of counsel, and concealed that his real motivation in seeking the agreement was to extricate himself from the marriage as inexpensively as possible. The procedural irregularities coupled with the disproportionate disposition of property rendered the agreement unconscionable. By contrast, in Galloway v. Galloway,178 a Virginia postmarital agreement case,179 the husband received ninety-four percent of the marital property and the wife waived alimony. However, the wife admitted that she signed the agreement voluntarily, that she knew she could consult counsel, and that she decided not to do so. The agreement was not unconscionable because there was no evidence of overreaching or oppressive behavior by the husband.
Where the postmarital agreement is executed during a period of marital discord or after a separation, a spouse’s agreement to reconcile can be sufficient consideration.180 However, a promised reconciliation must be made in good faith and must not be illusory. In Marshall v. Marshall,181 the wife transferred all of her own property, as well as her interest in joint property, to the husband in return for an illusory reconciliation. The agreement failed for lack of consideration.182 A separation, or threatened separation, must be bona fide and not merely contrived to obtain unfairly advantageous terms.
When the parties are not already separated and there is no bona fide intent to separate, a spouse’s agreement to stay married is not sufficient consideration. For example, in Whitmore v. Whitmore,183 a New York case, three months after marriage, the parties signed a postmarital agreement in which the wife waived all claims to the husband’s business. The agreement did not contain mutual promises or identify anything that the wife received in return for releasing her marital rights. The agreement failed for want of consideration. The court rejected the husband’s argument that his willingness to stay married was adequate consideration.
There is a clear trend toward greater spousal freedom to contract.184 This trend affects the general recognition of postmarital agreements, the criteria for their enforceability, and the subjects on which parties are able to contract. At present, in most states, parties have the freedom to make highly disadvantageous premarital agreements, and they may do so with a minimal degree of procedural fairness. The dominant trend seems to be to treat postmarital agreements in a similar manner, although, in some states, by statute or case law, there are some additional requirements for validity, especially consideration. In some states, the authority for such agreements is not well-developed, and in some it is virtually nonexistent. Moreover, the law regarding spousal support is not well-developed in the majority of states. Therefore, a lawyer preparing a postmarital agreement should take the cautious approach to the procedural steps leading to execution.The agreement should be substantively fair to each party, parties should make financial disclosure, and each party should have independent counsel.
1. Simmons v. Simmons, 249 S.W.3d 843, 846 (Ark. App. 2007); Vaccarello v. Vaccarello, 757 A.2d 909 (Pa. 2000); Combs v. Sherry-Combs, 865 P.2d 50 (Wyo. 1993); Acre v. Koenig, 404 P.2d 621 (Idaho 1965).
2. In re Bisque, 31 P.3d 175 (Colo. Ct. App. 2001); Vaccarello, 757 A.2d 909; D’Aston v. D’Aston, 808 P.2d 111 (Utah Ct. App. 1990).
3. Unif. Premarital and Marital Agreements Act [hereinafter “UPMAA”] § 2(2) (2012).
4. Hendrick v. Hendrick, 976 P.2d 1071, 1073 (Okla. Ct. App. 1998); see also Bradley v. Bradley, 164 P.3d 537 (Wyo. 2007) (stating that an amendment to a premarital agreement is governed by same statutory criteria for validity as a postmarital agreement) (interpreting Minnesota law).
5. Graham v. Graham, 33 F. Supp. 936 (E.D. Mich. 1940); Adams v. Adams, 113 A. 279 (N.H. 1921).
6. In re Harber v. Harber, 449 P.2d 7 (Ariz. 1969).
7. D’Aston, 808 P.2d at 111.
8. See In re Nelson, 53 So. 3d 922 (Ala. Civ. App. 2010); Lee v. Central Nat’l Bank & Trust, 308 N.E.2d 605 (Ill. 1974); Estate of Weber, 167 N.E.2d 98 (Ohio 1950).
9. See Bailey v. Bailey, 498 S.E.2d 891 (S.C. Ct. App. 1998); Estate of Wiseman, 889 S.W.2d 215 (Tenn. Ct. App. 1994); Conigliaro v. Conigliaro, 1992 Del. Fam. Ct. LEXIS 41 (1992); Tibbs v. Anderson, 580 So.2d 1337 (Ala. 1991); In re Estate of Lewin, 595 P.2d 1055 (Colo. App. 1979).
10. Bergman v. Bergman, 428 P.3d 89 (Utah Ct. App. 2018).
11. See Arizin v. Covello, 669 N.Y.S.2d 189 (Sup. Ct. 1998); Rosenblatt v. Kazlow-Rosenblatt, 655 N.E.2d 650 (Mass. App. 1995).
12. See Lund v. Lund, 849 P.2d 731 (Wyo. 1993) (abrogated by Vaughn v. State, 962 P.2d 149 (Wyo. 1998)).
13. See In re Estate of Soper, 598 S.W.2d 528 (Mo. Ct. App. 1980); see also In re Holtemann, 76 Cal. Rptr. 3d 615 (Cal App. 2008), vacated, 166 Cal. App. 4th 1166, 83 Cal. Rptr. 3d 385 (2008); O’Brien v. Collura, 898 A.2d 1075 (Pa. Super 2006); Kelln v. Kelln, 515 S.E.2d 789 (Va. 1999). A joint will, without a marital contract to confirm the parties’ intentions, is inadequate as a device to effect estate planning objectives. See Black v. Edwards, 445 S.E.2d 107 (Va. 1994) (whether parties intended joint will to constitute contract that became irrevocable on death of first to die is fact question for court).
14. See Gregory v. Estate of Gregory (In re Estate of Gregory), 866 S.W.2d 379 (Ark. 1993).
15. See Zipes v. Zipes, 599 N.Y.S.2d 941 (Sup. Ct. App. Div. 1993) (parties executed marital agreement prior to reconciliation and lived together for six more years).
16. See Dawbarn v. Dawbarn, 625 S.E.2d 186 (N.C. App. 2006); Flansburg v. Flansburg, 581 N.E.2d 430 (Ind. Ct. App. 1991); Nicholson v. Nicholson, 489 A.2d 1247 (N.J. Super. Ct. App. Div. 1985); Hoyt v. Hoyt, 372 S.W.2d 300 (Tenn. 1963).
17. See Martello v. Martello, 960 So.2d 186 (La. App. 2007); Estate of Catto, 944 P.2d 1052 (Wash App. 1997); Will of Goldberg, 582 N.Y.S.2d 617 (Sur. Ct. 1992); Smith v. Smith, 173 S.W.2d 813 (Ky. 1943).
18. See Gardella v. Remizov, 42 N.Y.S.3d 225 (App. Div. 2016).
19. See Elia v. Pifer, 977 P.2d 796 (Ariz. Ct. App. 1998); see also Arizona ex rel. Indus. Comm’n v. Wright, 43 P.3d 203 (Ariz. Ct. App. 2002) (postmarital amendment to premarital agreement was fraudulent conveyance); Schultz v. Sykes, 638 N.W.2d 76 (Wis. Ct. App. 2001) (husband’s wages subject to garnishment to satisfy tort judgment against wife where marital agreement reclassified parties’ property as separate property executed only after cause of action arose); D’Aston v. D’Aston, 808 P.2d 111 (Utah Ct. App. 1990) (postmarital agreement enforced at divorce over husband’s claim executed only to protect marital assets from creditors in pending business litigation).
20. See Dritselis v. Dritselis, Nos. 0239-05-3, 0239-05-3, 2005 WL 2977762 (Va. Ct. App. Nov. 8, 2005) (postmarital agreement proposed by husband to protect assets from potential civil assault claim).
21. See In re Friedman, 122 Cal. Rptr. 2d 412 (Cal. App. 2002) (husband sought postmarital agreement to protect wife from medical creditors if bone marrow transplant failed to save his life).
22. See Bell v. Bell, 835 P.2d 1331 (Idaho 1992) (postmarital agreement to allocate to husband all community debt incurred by him was valid); see also Radcliffe 10, L.L.C. v. Burger, 2016-0768 (La. 01/25/17), 219 So.3d 296 (La. 2017) (agreement to terminate matrimonial regime and establish separate property regime is binding on creditors of one spouse); Seidel v. United States, No. C 07-3141, 2008 WL 2397462 (N.D. Cal. June 11, 2008) (postmarital agreement ineffective to protect wife’s community assets from husband’s community tax liabilities where executed after debt incurred).
23. See In re Marriage of Mueller, 167 P.3d 568 (Wash. App. 2007); Punelli v. Punelli, 364 N.W.2d 259 (Iowa Ct. App. 1984).
24. See Buskirk v. Buskirk, 86 N.E.3d 217 (Ind. Ct. App. 2017).
25. See Estate of Harber, 449 P.2d 7 (Ariz. 1969).
26. N.Y. Dom. Rel. Law § 236(B)(3) (2018); Tex. Fam. Code § 4.102 (2017); Va. Code § 20-155 (2017); Wis. Stat. §§ 766.58, 767.255 (2018).
27. Minn. Stat. Ann. § 519.11 (2018).
28. Colo. Rev. Stat. § 14-2-301 (2018); N.D. Cent. Code § 14-03.2 (2018).
29. Bedrick v. Bedrick, 17 A.3d 17 (Conn. 2011); Ansin v. Craven-Ansin, 929 N.E.2d 955 (Mass. 2010); Vaccarello v. Vaccarello, 757 A.2d 909 (Pa. 2000); Tibbs v. Anderson, 580 So.2d 1337 (Ala. 1991); Casto v. Casto, 508 So.2d 330 (Fla. 1987); Sanders v. Colwell, 283 S.E.2d 461 (Ga. 1981); Hoyt v. Hoyt, 372 S.W.2d 300 (Tenn. 1963).
30. See e.g., D.C. Code § 46-601 (2018); Haw. Rev. Stat. § 572-22 (2018); Ky. Rev. Stat. Ann. § 404.020 (2018); La. Civ. Code art. 2328 (2018); Mont. Code § 40-2-301 (2017); Nev. Rev. Stat. § 123.070 (2017); N.M. Stat. § 40-2-2 (2018); R.I. Gen. Laws §§ 15-4-3, 15-4-4 (2018); Wash. Rev. Code § 26.16.150 (2018).
31. See Kreytak v. Kreytak, 923 P.2d 960 (Haw. Ct. App. 1996); Estate of Gab, 364 N.W.2d 924 (S.D. 1985); In re Myers, 682 P.2d 718 (Mont. 1984); Estate of Loughmiller, 629 P.2d 156 (Kan. 1981); Getty v. Damson, 387 P.2d 964 (Wash. 1964); Smith v. Smith, 173 S.W.2d 813 (Ky. 1943).
32. See, e.g., D.C. Code § 16-910 (2018); 750 Ill. Comp. Stat. § 5/503 (2018); Ky. Rev. Stat. § 403.190 (2018); Mo. Rev. Stat. § 452.330(2) (2018); Mont. Code § 40-2-304, § 40-2-311 (2018); N.C. Gen. Stat. § 50-20 (2018); S.C. Code § 20-7-473 (2018).
33. See, e.g., Cal. Fam. Code § 721 (2018).
34. Tex. Fam. Code § 4.102 (2017); Idaho Code §§ 32-916, 32-917, 32-918 (2018); Wash. Rev. Code § 26.16.120 (2018); La. Civ. Code art. 2328, 2329, 2331, 2336 (2018). In Louisiana, termination of the matrimonial regime requires court approval. La. Civ. Code art. 2329 (2018).
35. Wash. Rev. Code § 26.16.120 (2018); Tex. Fam. Code Ann. § 4.201 (2018).
36. See e.g., Alaska Stat. § 13.12.213 (2018); Colo. Rev. Stat. § 15-11-207 (2018); Kan. Stat. § 59-6a-213 (2018); Mont. Code. § 72-2-224 (2018); Neb. Rev. Stat. § 30-2316 (2018); Blanchard v. White, 351 N.W.2d 707 (Neb. 1984).
37. Ala. Code § 43-8-72 (2018) (spousal contracts subject to rules regarding confidential relations; must be in writing and made after fair disclosure); Cal. Fam. Code § 721 (2018) (same); Ind. Code § 29-1-2-13 (2018) (contract waiving spousal rights at death must be in writing with full disclosure and fair consideration); Mo. Rev. Stat. § 474.220 (same); Mont. Code § 72-2-224 (2018) (for waiver of spousal rights at death, same requirements as for valid premarital agreement under UPAA).
38. See Stevens v. Stevens, 16 P.3d 900 (Idaho 2000).
39. Ark. Code § 9-11-301 (2018) (marriage contract must be in writing, acknowledged, or witnessed); Ga. Code §19-3-67 (2018) (marriage contract must be recorded in clerk’s office);, Idaho § 32-917 (2018) (contract for marriage settlement must be in writing, executed, and acknowledged like land conveyance); S.C. Code § 20-5-50 (2018) (marriage contract must be in writing, signed, and witnessed).
40. Conn. Gen. Stat. § 45a-494 (2019); Mich. Comp. Laws § 554.75 (2018); S.C. Code § 27-6-50 (2018); Tenn. Code § 66-1-205 (2018); W. Va. Code § 36-1A-4 (2018).
41. Mont. Code Ann. § 40-2-303 (2018) (emphasis added).
42. Ohio Rev. Code Ann. § 3103.06 (West 2018).
43. DuBois v. Coen, 125 N.E. 121 (Ohio 1919); see also Moore v. Moore, 2007 Ohio 4355 (2007) (distinguishing between permitted separation agreement and prohibited marital agreement); Brewsaugh v. Brewsaugh, 491 N.E.2d 748 (Ohio Com. Pl. 1985) (postmarital agreement not incident to separation to alter surviving spouse rights is prohibited).
44. Hoffman v. Dobbins, 2009 Ohio 5157 (2009).
45. Id.; Dalgarn v. Leonard, 87 N.E.2d 728 (Ohio Prob. 1948), aff’d, 90 N.E.2d 159 (Ohio Ct. App. 1949).
46. Neb. Rev. Stat. § 30-2316 (2018).
47. 886 N.W.2d 61 (Neb. 2016).
48. Id. at 69.
49. But when parties ratify a postmarital agreement at the time of a divorce filing, it becomes a separation agreement and is enforceable. Lisec v. Lisec, 894 N.W.2d 350 (Neb. Ct. App. 2017).
50. 766 N.W.2d 648 (Iowa Ct. App. 2009); see also Estate of Kennedy, 135 N.W. 53 (Iowa 1912) (holding that a purported oral postmarital agreement to waive dower was void as prohibited by statute).
51. See In re Cooper, 769 N.W.2d 582 (Iowa 2009).
52. O’Dell v. O’Dell, 26 N.W.2d 401 (Iowa 1947).
53. Okla. Stat. tit. 43, §§ 204, 205 (2018).
54. See Manhart v. Manhart, 725 P.2d 1234 (Okla. 1986) (postmarital agreement enforceable at divorce); Hendrick v. Hendrick, 976 P.2d 1071 (Okla. Ct. App. 1998) (amendment to premarital agreement is invalid as postmarital agreement not authorized by Oklahoma law); Boyer v. Boyer, 925 P.2d 82 (Okla. Ct. App. 1996) (postmarital amendment to premarital agreement valid);.
55. Ransford v. Yens, 132 N.W.2d 150 (Mich. 1965); Estate of Rockwell v. Rockwell, 180 N.W.2d 498 (Mich. App. 1970).
56. See Hodge v. Parks, 844 N.W.2d 189 (Mich. App. 2014).
57. 761 N.W.2d 443 (Mich. App. 2008); see also Cheff v. Cheff, No. 300231, 2012 Mich. App. LEXIS 753 (postmarital agreement signed six months after wedding and providing for property division and alimony at divorce, where couple living together at execution, was void as against public policy).
58. See supra Part II.A.
59. These states include Iowa, New Mexico, South Dakota, and Mississippi. Linda J. Ravdin, Premarital Agreements: Drafting and Negotiation, app. B(1), “State Law Summary” (Am. Bar Ass’n 2d ed. 2017).
60. N.C. Gen. Stat. § 50-20 (2013) (husband and wife can enter into written agreement before, during, and after marriage regarding property); Stegall v. Stegall, 397 S.E.2d 306 (N.C. App 1990), cert. den., 400 S.E.2d 461 (N.C. 1991) (separation agreement providing for spousal support void unless parties are separated or planning imminent separation).
61. Buskirk v. Buskirk, 86 N.E.3d 217 (Ind. Ct. App. 2017); Scherer v. Scherer, 292 S.E.2d 662 (Ga. 1982).
62. 607 A.2d 1116 (Pa. Super. 1992).
63. 580 So. 2d 1337 (Ala. 1991).
64. 372 S.W.2d 300 (Tenn. 1963).
65. 508 So. 2d 330 (Fla. 1987).
66. Id. at 333.
67. See Crupi v. Crupi, 784 So. 2d 611 (Fla. Dist. Ct. App. 2001); Petracca v. Petracca, 706 So. 2d 904 (Fla. Dist. Ct. App. 1998).
68. Lipps v. Loyd, 967 P.2d 558, 562, n.1 (Wyo. 1998) (“In Wyoming, alimony can be modified even if it was originally established in a separation agreement.”) (citing Dorr v. Newman, 785 P.2d 1172, 1178 (Wyo. 1990)).
69. Stewart v. Combs, 243 S.W.3d 294 (Ark. 2006).
70. See supra Part II.A.
71. See, e.g., Lipic v. Lipic, 103 S.W.3d 144 (Mo. App. 2003); Stoner v. Stoner, 819 A.2d 529 (Pa. 2003); Allen v. Allen, 641 A.2d 1332 (Vt. 1994); Tibbs v. Anderson, 580 So.2d 1337 (Ala. 1991); Curry v. Curry, 392 S.E.2d 879 (Ga. 1990); Stack v. Venzke, 485 N.E.2d 907 (Ind. Ct. App. 1985).
72. Unif. Probate Code § 2-213 (2010).
73. UPMAA § 9 (2012).
74. Defined as “an agreement between spouses who intend to remain married which affirms, modifies, or waives a marital right or obligation during the marriage or at separation, marital dissolution, death of one of the spouses, or the occurrence or nonoccurrence of any other event.” UPMAA § 2(2) (2012).
75. Barbara A. Atwood & Brian H. Bix, A New Uniform Law for Premarital and Marital Agreements, 46 Fam. L.Q. 313, 317–18 (2012) (hereinafter Atwood & Bix). The authors were, respectively, Chair of the Drafting Committee and Reporter for the Act.
76. Ravdin, supra note 59, § 2.08(c) and app. B(1).
78. UPMAA § 9 cmt.
79. Barclay v. Barclay, 56 N.Y.S.3d 257 (App. Div. 2017); Estate of Wilber, 76 A.3d 1096 (N.H. 2013).
80. Lasater v. Gutman, 5 A.3d 79, 93 (Md. Ct. Spec. App. 2010).
81. Barker v. Barker, 27 N.W.2d 576, 581 (N.D. 1947); see also Alaska Stat. § 34.77.010 (2018); Ala. Code § 30-4-9 (2018); Cal. Fam. Code § 721(2015); N.M. Stat. Ann. § 40-2-2 (2019); Williams v. Waldman, 836 P.2d 614 (Nev. 1992); In re Myers, 682 P.2d 718 (Mont. 1984); Ray v. Ray, 189 So. 895 (Ala. 1939).
82. Murray v. Murray, 791 S.E.2d 816 (Ga. 2016); Beesley v. Harris, 883 P.2d 1343 (Utah 1994); Bell v. Bell, 379 A.2d 419 (Md. Ct. Spec. App. 1977).
83. Stoner v. Stoner, 819 A.2d 529 (Pa. 2003); Gabaig v. Gabaig, 717 P.2d 835 (Alaska 1986); Daniel v. Daniel, 779 S.W.2d 110, 115 (Tex. Ct. App. 1989); Bodine v. Bodine, 754 P.2d 1200 (Idaho Ct. App. 1988); Williams v. Waldman, 836 P.2d 614 (Nev. 1992); Pacelli v. Pacelli, 185, 725 A.2d 56 (N.J. Super. Ct. App. Div. 1999).
84. Drewry v. Drewry, 383 S.E.2d 12 (Va. App. 1989); Marschall v. Marschall, 477 A.2d 833 (N.J. Ch. 1984); but see Sanford v. Sanford, 137 S.W.3d 391 (Ark. 2003) (lawyer-husband occupied fiduciary relationship vis-à-vis estranged wife when he discouraged her from getting separate counsel and reassured her that he would protect her interests).
85. Ansin v. Craven-Ansin, 929 N.E.2d 955 (Mass. 2010).
86. Id. at 963.
87. Pacelli v. Pacelli, 725 A.2d 56 (N.J. Super. Ct. App. Div. 1999); In re Marriage of Frederick, 578 N.E.2d 612 (Ill. App. 1991); but see In re Stone, No. B243240, 2016 WL 2756882 (Cal. Ct. App. May 9, 2016) (unpub.) (estranged spouses had no duty to disclose consultation with divorce lawyer before execution of postmarital agreement).
88. Murray v. Murray, 791 S.E.2d 816 (Ga. 2016) (husband’s pretense that postmarital agreement was merely symbolic was fraud; agreement invalid); In re Richardson, 606 N.E.2d 56 (Ill. App. 1992) (husband’s misrepresentation of intent to reconcile to induce wife to sign postmarital agreement one factor rendering agreement invalid); Fogg v. Fogg, 567 N.E.2d 921, 923 (Mass. 1991) (wife misrepresented intent to stay married to induce husband to make property settlement favorable to her; postmarital agreement invalid).
89. Estate of Harber, 449 P.2d 7, 16 (Ariz. 1969).
90. Estate of Gab, 364 N.W.2d 924 (S.D. 1985).
91. Womack v. Womack, 622 N.E.2d 481 (Ind. 1993); Polsky v. Polsky, 467 S.W.2d 860 (Mo. 1971); Miethe v. Miethe, 101 N.E.2d 571 (Ill. 1951).
92. Myrick v. Myrick, 2 S.W.3d 60 (Ark. 1999); Womack v. Womack, 622 N.E.2d 481 (Ind. 1993); Punelli v. Punelli, 364 N.W.2d 259 (Iowa. Ct. App. 1984); Polsky v. Polsky, 467 S.W.2d 860 (Mo. 1971).
93. Estate of Meadows, No. E041626, 2008 WL 135036 (Cal. Ct. App. Jan. 15, 2008); Estate of Gab, 364 N.W.2d 924 (S.D. 1985).
94. Gabaig v. Gabaig, 717 P.2d 835 (Alaska 1986).
95. See Friedman v. Friedman, 122 Cal. Rpt. 2d 412 (Cal. App. 2002).
96. Bedrick v. Bedrick, 17 A.3d 17, 27 (Conn. 2011).
97. UPMAA § 9 (2012).
98. Lugg v. Lugg, 64 A.3d 1109 (Pa. Super. Ct. 2013).
99. In Ansin, 929 N.E.2d at 955, the court declined to decide whether consideration should be required for validity of a postmarital agreement because the agreement before the court there was supported by consideration. However, it did require substantive fairness at both execution and enforcement at divorce. See also In re Bell, 360 S.W.3d 270 (Mo. Ct. App. 2011) (postmarital agreement under which wife got no consideration for waiver of rights was invalid as unconscionable).
100. Cannon v. Cannon, 865 A.2d 563 (Md. 2005).
101. See e.g., Alaska Stat. § 34.77.090 (2018); Colo. Rev. Stat. § 14-2-303 (2018); Mont. Code Ann. § 40-2-304 (2018); Va. Code Ann. § 20-155 (2017); Wis. Stat. Ann. § 766.58 (2018).
102. Cal. Prob. Code § 142 (2018); Fla. Stat. § 732.702 (2018); N.C. Gen. Stat. § 52-10 (2018).
103. See Ind. Code § 29-1-2-13 (2018); Me. Rev. Stat. tit. 18-A, §2-204 (2018); Mo. Rev. Stat. § 474.220 (2018).
104. Rockwell v. Estate of Rockwell (In re Estate of Rockwell), 180 N.W.2d 498 (Mich. Ct. App. 1970).
106. Blanchard v. White, 351 N.W.2d 707 (Neb. 1984); Campbell v. Campbell, 377 S.W.2d 93 (Ky. Ct. App. 1964).
107. Combs v. Sherry-Combs, 865 P.2d 50 (Wyo. 1993); see also Bedrick v. Bedrick, 17 A.3d 17 (Conn. 2011); In re Tabassum and Younis, 881 N.E.2d 396, reh’g denied (Ill. App. 2007); Simmons v. Simmons, 249 S.W.3d 843 (Ark. App. 2007); Whitmore v. Whitmore, 778 N.Y.S.2d 73 (App. Div. 2004); Beesley v. Harris, 883 P.2d 1343 (Utah 1994).
108. See In re Hall, 27 N.E.3d 281 (Ind. Ct. App. 2015).
109. See Beaman v. Beaman, 844 N.E.2d 525 (Ind. Ct. App. 2006) (court may reject postmarital agreement only on finding of fraud, duress, other imperfections of consent, or manifest inequity, particularly if resulting from great disparity in bargaining power); Lipic v. Lipic, 103 S.W.3d 144 (Mo. App. 2003) (postmarital agreement is binding if process was fair and agreement not unconscionable).
110. UPMAA § 9(f) (2012).
111. See, e.g., Chen v. Hoeflinger, 279 P.3d 11 (Haw. Ct. App. 2012) (unconscionability of postmarital agreement determined as of execution).
112. Ravdin, supra note 59, at § 2.08(c) and app. B(1), “State Law Summary.”
113. See Traster v. Traster, 339 P.3d 778 (Kan. 2014) (public policy inquiry into whether agreement tends to encourage divorce abrogated by statute creating requirement for court at divorce to determine whether agreement is just and equitable; standard applies equally to both postmarital agreements and separation agreements); Bratton v. Bratton, 136 S.W.3d 595 (Tenn. 2004) (postmarital agreements are not contrary to public policy provided there was consideration and they were entered into knowledgeably, without fraud or coercion).
114. N.C. Gen. Stat. § 52-10(a) (2018).
115. 625 S.E.2d 186 (N.C. Ct. App. 2006).
116. 2005 Tenn. App. LEXIS 517.
117. See In re Nelson, 53 So. 3d 922 (Ala. Civ. App. 2010); Stoner v. Stoner, 819 A.2d 529 (Pa. 2003).
118. Cal. Prob. Code § 143 (2018).
119. Minn. Stat. § 519.11.1a(c) (2018).
120. N.J. Stat. Ann. § 37.2-38(c)(4) (2018); Ravdin, supra note 59, §2.06(a).
121. Ark. Code Ann. § 9-11-406(a)(2)(ii) (2018).
122. UPMAA § 9(a)(2).
123. Harbom v. Harbom, 760 A.2d 272, 277 (Md. Ct. Spec. App. 2000) (involving a premarital agreement).
124. UPMMA § 9(b).
125. 24A Am. Jur. 2d Divorce and Separation § 1049; see also Traster v. Traster, 339 P.3d 778 (Kan. 2014) (postmarital agreement providing for spousal rights at divorce to be treated the same as separation agreements; therefore, subject to court review at divorce as to whether just and equitable). The discussion here is concerned only with whether court approval is a necessary prerequisite to an enforceable postmarital agreement only insofar as it deals with property and spousal support, and not with court authority over child custody or support.
126. Pond v. Pond, 700 N.E. 2d 1130 (Ind. 1998).
127. Flansburg v. Flansburg, 581 N.E.2d 430 (Ind. Ct. App. 1991).
128. Beaman v. Beaman, 844 N.E.2d 525 (Ind. Ct. App. 2006); see also Augle v. Augle, 868 N.E.2d 1146 (Ind. Ct. App. 2007).
129. Pond, 700 N.E.2d at 1136.
130. Beaman, 847 N.E.2d at 531.
131. See In re Cooper, 769 N.W.2d 528 (Iowa 2009) (court may consider marital agreement made by parties in deciding division of property at divorce).
132. In re Vella, 603 N.E.2d 109 (Ill. Ct. App. 1992) (postmarital agreement executed during pending divorce proceeding was enforceable where parties reconciled but carried out terms; validity not dependent upon entry of divorce decree approving).
133. La. Civ. Code Ann. art. 2329 (2018); Martello v. Martello, 960 So.2d 186 (La. Ct. App. 2007); Williams v. Williams, 760 So.2d 469 (La. Ct. App. 2000).
134. La. Civ. Code Ann. art. 2336 (2018); Poirier v. Poirier, 626 So.2d 868 (La. Ct. App. 1993).
135. Martello, 960 So.2d 186.
136. Minn. Stat. § 519.11 (2018).
137. Estate of Francis, No. C7-98-1052, 1998 WL 887472, at *1 (Minn. Ct. App. Dec. 22, 1998).
138. See Seidel v. United States, No. C 07-3141, 2008 WL 2397462 (N.D. Cal. June 11, 2008) (citing Cal. Fam. Code § 852(b), transmutation of real property not effective as to third parties without notice unless recorded).
139. See, e.g., In re Tabassum & Younis, 881 N.E.2d 396 (Ill. Ct. App. 2007) (postmarital agreement not product of duress, notwithstanding husband’s fear wife would remain in Canada with parties’ child, where husband had counsel and parties negotiated changes); Dritselis v. Dritselis, No. 0239-05-3, 2005 WL 2977762 (Va. Ct. App. Nov. 8, 2005) (postmarital agreement not product of fraud on husband where husband proposed it to protect assets from creditors); Friedman v. Friedman, 122 Cal. Rptr. 2d 412 (Cal. App. 2002) (postmarital agreement to protect wife’s law practice and to protect her from husband’s medical bills was valid, rejecting wife’s challenge).
140. Sheshunoff v. Sheshunoff, 172 S.W.3d 686 (Tex. Ct. App. 2005) (postmarital agreement was valid where husband had team of lawyers) (rejecting husband’s challenge despite draconian terms).
141. Head v. Head, 477 A.2d 282 (Md. Ct. Spec. App. 1984).
142. Blum v. Blum, 477 A.2d 289 (Md. Ct. Spec. App. 1984).
143. Myrick v. Myrick, 2 S.W.3d 60, 64 (Ark. 1999).
144. Id. at 64.
145. Id. at 64–65.
146. See Miethe v. Miethe, 101 N.E.2d 571 (Ill. 1951) (wife held half of family real estate in constructive trust for husband where she used his wages throughout the marriage to buy, renovate and manage real estate and where wife was solely responsible for all family financial affairs).
147. See Barchella v. Barchella, 844 N.Y.S.2d 78 (App. Div. 2007) (postmarital agreement invalid for overreaching where wife signed agreement while suffering complications of surgery); Estate of Lundvall, 46 N.W.3d 535 (Iowa 1951) (wife failed to prove transfers of husband’s property to her were voluntary where wife became dominant party after husband suffered head injury and wife took over business affairs).
148. See In re Osborne, No. 50527-1-I, 2003 Wash App. LEXIS 3077 (2003) (husband was divorce lawyer and appreciated importance of independent legal advice but did not explain that to wife and directed her to lawyer with whom he shared office space; postmarital agreement invalid).
149. See Sanford v. Sanford, 137 S.W.3d 391 (Ark. 2003).
150. 364 N.W.2d 259 (Iowa Ct. App. 1984).
151. See also Velez v. Lizardi, 2015 Va. App. LEXIS 68 (unpub.) (where parties had separated, evidence did not support finding of special fiduciary relationship); Dawbarn v. Dawbarn, 625 S.E.2d 186 (N.C. Ct. App. 2006) (no fiduciary duty when either spouse has counsel); but see In re Grossman, 82 P.3d 1039 (Or. 2003), aff’d, In re Grossman, 106 P.3d 618 (Or. 2005) (spouses negotiating postmarital agreement have higher fiduciary duty than unmarried persons negotiating premarital agreement).
152. Jennings v. Jennings, 409 S.E.2d 8 (Va. Ct. App. 1991).
153. Id. at 14.
154. Northington v. Northington, 257 So.3d 326 (Ala. Ct. App. 2017) (postmarital agreement); Sheshunoff v. Sheshunoff, 172 S.W.3d 686 (Tex. Ct. App. 2005) (postmarital agreement); Cannon v. Cannon, 865 A.2d 563 (Md. 2005) (premarital agreement); Dornemann v. Dornemann, 850 A.2d 273 (Conn. App. 2004) (premarital agreement).
155. See Maddaloni v. Maddaloni, 36 N.Y.S.3d 695 (N.Y. App. Div. 2016) (invalidating postmarital agreement; husband’s presentation of postmarital agreement to wife directly, rather than to her lawyer, was overreaching, and terms were extremely unfair).
156. See Pramagioulis v. Pramagioulis, No. 1437-10-2, 2011 WL 204424 (Va. Ct. App. Jan. 25, 2011).
157. See Austin v. Austin, 348 P.3d 897 (Ariz. Ct. App. 2015).
158. Pacelli v. Pacelli, 725 A.2d 56 (N.J. Super. Ct. App. Div. 1999).
159. Id. at 59.
160. Gabaig v. Gabaig, 717 P.2d 835 (Alaska 1986).
161. Fanning v. Fanning, 828 S.W.2d 135 (Tex. Ct. App. 1992), rev’d in part on other grounds, 847 S.W.2d 225 (Tex. 1993).
162. See also In re Osborne, 79 P.3d 465 (Wash. App. 2003) (postmarital agreement unenforceable where husband directed wife to lawyer who was not independent, terms of agreement not fair to wife, and husband threatened divorce); Chait v. Chait, 681 N.Y.S.2d 269 (App. Div.1998) (postmarital agreement invalid where wife threatened to take parties’ child away and had means to carry out her threat).
163. Derby v. Derby, 378 S.E.2d 74 (Va. Ct. App. 1989).
164. See In re Myers, 682 P.2d 718 (Mont. 1984) (husband took advantage of wife by demanding postmarital agreement transferring half of her separate property to him as a condition of staying married).
165. See In re Tabassum and Younis, 881 N.E.2d 396, reh’g denied (Ill. App. 2007) (postmarital agreement favorable to wife not product of duress where adulterous husband agreed to terms in order to reconcile).
166. In re Stone, No. B243240, 2016 WL 2756882 (Cal. Ct. App. May 9, 2016) (unpub.)
167. Grover v. Grover, 276 S.W.3d 740 (Ark. Ct. App. 2008) (postmarital agreement was product of duress where parties had reconciled, and husband threatened divorce to extract unfair terms); Marshall v. Marshall, 273 S.E.2d 360 (W. Va. 1980) (postmarital agreement invalid where husband insisted wife convey all marital property to him as condition of reconciliation).
168. See Murray v. Murray, 791 So.2d 816 (Ga. 2016) (postmarital agreement was product of fraud where husband’s promises to tear it up and that it was merely symbolic were a pretense, and where, after thirty-four years of marriage, wife entitled to trust his representations).
169. Maddaloni v. Maddaloni, 36 N.Y.S.3d 695 (App. Div. 2016); Reese v. Reese, 984 P.2d 987 (Utah 1999).
170. In re Rogers, Nos. 27259-1-III, 27452-7-III, 2009 Wash. App. LEXIS 3154 (Wash. Ct. App. Dec. 24, 2009).
171. Reese, 984 P.2d 987.
172. Buskirk v. Buskirk, 86 N.E.3d 217 (Ind. Ct. App. 2017); Estate of Wiseman, 889 S.W.2d 215 (Tenn. Ct. App. 1994); Tibbs v. Anderson, 580 So. 2d 1337 (Ala. 1991); Estate of Brosseau, 531 N.E.2d 158 (Ill. App. 1988); Estate of Ratony, 277 A.2d 791 (Pa. 1971); Estate of Rockwell, 180 N.W.2d 498 (Mich. Ct. App. 1970).
173. Lipic v. Lipic, 103 S.W.3d 144 (Mo. App. 2003).
174. Dritselis v. Dritselis, No. 0239-05-3, 2005 WL 2977762 (Va. Ct. App. Nov. 8, 2005).
175. Bergmann v. Bergmann, 428 P.3d 89 (Utah Ct. App. 2018).
176. See O’Malley v. O’Malley, 836 N.Y.S.2d 706 (N.Y. App. Div. 2007).
177. In re Richardson, 606 N.E.2d 56 (Ill. Ct. App. 1992).
178. Galloway v. Galloway, 622 S.E.2d 267 (Va. Ct. App. 2005).
179. In Virginia, all spousal agreements—premarital, postmarital, and separation—are governed by its version of the UPAA. Va. Code § 20-155.
180. Buskirk v. Buskirk, 86 N.E.3d 217 (Ind. Ct. App. 2017); Dawbarn v. Dawbarn, 625 S.E.2d 186 (N.C. App. 2006); Bratton v. Bratton, 136 S.W.3d 595 (Tenn. 2004); Hanner v. Hanner, 388 P.2d 239 (Ariz. 1964).
181. Marshall v. Marshall, 273 S.E.2d 360 (W. Va. 1980).
182. See also Fogg v. Fogg, 567 N.E.2d 921 (Mass. 1991) (postmarital agreement extremely favorable to wife was invalid where her promise of reconciliation was a sham).
183. Whitmore v. Whitmore, 778 N.Y.S.2d 73 (App. Div. 2004).
184. See Sean Hannon Williams, Postnuptial Agreements, 2007 Wis. L. Rev. 827 (2007).