MARITAL AGREEMENTS

Marital Agreements are in essence a special type of contract, and as such, contract rules generally apply.  There are two types of marital agreements:  Antenuptial or Prenuptial Agreements and Postnuptial Agreements.

Antenuptial/Prenuptial Agreement: is a contract made before marriage.  The contract must be in writing, signed by both parties, acknowledged, and should contain a schedule disclosing all assets.  The parties can contract as to property settlement and spousal support (alimony), but may not contract as to child custody or child support.  Also, "lifestyle provisions" such as the division of household chores, frequency of sex, or religious upbringing of the children are not upholdable.  Confidentiality clauses and sunset clause are usually upheld.  Confidentiality clauses are designed to prevent the revealing of family or business secrets or of the actual agreement itself.  Sunset clauses provide for the termination of the agreement at the end of a specified duration.  Prenuptial contracts are generally considered valid if fair.  They are considered fair if there has been a "fair and adequate disclosure" of a spouse's worth before signing the agreement and reasonable arrangements have been made for the spouse based on the situation.  Agreements that leave the spouse reliant on public assistance are considered unconscionable.  The agreement must be entered into voluntarily.  Contracts signed right before the ceremony or without independent counsel have often been deemed coerced.  Any signs of coercion or fraud will usually lead to a finding that the agreement is nonenforceable.  The person enforcing the contract has the burden of proof.  I would suggest videotaping a reading and execution of the agreement where both parties and their attorneys are present.  Also, the contract should not encourage divorce.  Hence, the contract should not be drafted so that only a divorce will trigger the contract; instead, death and separation should be used as additional contingencies that trigger the contract. 

Postnuptial Agreement:  is a contract made after marriage.  In drafting a postnuptial agreement, I would suggest following the same rules as set out above for prenuptial agreements. 

NOTE:  An antenuptial/prenuptial or postnuptial agreement can be a useful tool in protecting a person's material interests should one be faced with the unfortunate event of a separation, divorce, or death of a spouse.  They can be used to keep a family business in the family and to help curb high litigation costs.  However, in contemplating entering into either an antenuptial/prenuptial or postnuptial agreement, one needs to keep in mind that the courts do not favor an agreement that is vengeful and punitive against a spouse.

 

ARKANSAS CODE OF 1987 ANNOTATED
TITLE 9. FAMILY LAW
SUBTITLE 2. DOMESTIC RELATIONS
CHAPTER 11. MARRIAGE
SUBCHAPTER 3. MARRIAGE CONTRACTS GENERALLY
 
Arkansas Code Annotated Section 9-11-301: Execution of contract.
All marriage contracts whereby any estate, real or personal, is intended to be secured or conveyed to any person, or whereby the estate may be affected in law or equity, shall be in writing, acknowledged by each of the contracting parties or proved by one (1) or more subscribing witnesses.
 
Arkansas Code Annotated Section 9-11-302:  Acknowledgment or proof.
Marriage contracts shall be acknowledged or proven before a court of record, before some judge or clerk of a court of record, or before any former judge of a court of record who served at least four (4) years, of the state in which the contract is made and executed, which acknowledgment or proof shall be taken and certified in the same manner as deeds of conveyance for lands are or shall be required by law to be acknowledged or proven.
 
Arkansas Code Annotated Section  9-11-303:  Recordation -- Effect.
  (a) Every marriage contract whereby any real estate is conveyed or secured shall be recorded with the certificate of proof or acknowledgment in the office of the clerk and recorder of every county in which any estate intended to be affected or conveyed shall be situated.
  (b) When a marriage contract is deposited with the recorder of any county for record, it shall be deemed full notice to all persons of the contents thereof, as far as relates to real estate affected thereby in the county where it is deposited.
 
Arkansas Code Annotated Section  9-11-304: Effect of unrecorded contract.
No marriage contract shall be valid or affect property except between the parties thereto and those who have actual notice thereof, until it shall be deposited for record with the clerk and recorder of the county where the real estate is situated.
 
Arkansas Code Annotated Section  9-11-305: Contract or copy as evidence -- Conclusiveness.
  (a) Marriage contracts duly proved or acknowledged, certified, or recorded shall be received as evidence in any court of record of this state, without further proof of their execution.
  (b) When it shall appear to a court that any marriage contract duly acknowledged or proved and recorded is lost or is not in the power of the party wishing to use it, a copy duly certified under the hand and seal of the clerk and recorder may be received in evidence.
  (c) Neither the certificate of acknowledgment nor probate of any marriage contract, nor the record or transcript thereof, shall be conclusive, but may be rebutted.
 
 
ARKANSAS CODE OF 1987 ANNOTATED
TITLE 9. FAMILY LAW
SUBTITLE 2. DOMESTIC RELATIONS
CHAPTER 11. MARRIAGE
SUBCHAPTER 4. PREMARITAL AGREEMENTS
 
Arkansas Code Annotated Section  9-11-401: Definitions.
As used in this subchapter:
  (1) "Premarital agreement" means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage; and
  (2) "Property" means an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings.
 
Arkansas Code Annotated Section  9-11-402: Formalities.
A premarital agreement must be in writing and signed and acknowledged by both parties. It is enforceable without consideration.
 
Arkansas Code Annotated Section  9-11-403: Content.
  (a) Parties to a premarital agreement may contract with respect to:
      (1) The rights and obligations of each of the parties in any of the property of either or both of them, whenever and wherever acquired or located;
      (2) The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
      (3) The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
      (4) The modification or elimination of spousal support;
      (5) The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
      (6) The ownership rights in and disposition of the death benefit from a life insurance policy;
      (7) The choice of law governing the construction of the agreement; and
      (8) Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
  (b) The right of a child to support may not be adversely affected by a premarital agreement.
 
Arkansas Code Annotated Section  9-11-404: Effect of marriage.
A premarital agreement becomes effective upon marriage.
 
Arkansas Code Annotated Section  9-11-405: Amendment or revocation.
After marriage, a premarital agreement may be amended or revoked only by a written agreement signed by the parties. The amended agreement or the revocation is enforceable without consideration.
 
Arkansas Code Annotated Section  9-11-406: Enforcement.
  (a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:
      (1) The party did not execute the agreement voluntarily; or
      (2) The agreement was unconscionable when it was executed and, before execution of the agreement, that party:
          (i) Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
           (ii) Did not voluntarily and expressly waive after consulting with legal counsel, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
           (iii) Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
  (b) If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility.
  (c) An issue of unconscionability of a premarital agreement shall be decided by the courts as a matter of law.
 
Arkansas Code Annotated Section  9-11-407: Enforcement: Void marriage.
If a marriage is determined to be void, an agreement that would otherwise have been a premarital agreement is enforceable only to the extent necessary to avoid an inequitable result.
 
Arkansas Code Annotated Section  9-11-408: Limitations of actions.
Any statute of limitations applicable to an action asserting a claim for relief under a premarital agreement is tolled during the marriage of the parties to the agreement. However, equitable defenses limiting the time for enforcement, including laches and estoppel, are available to either party.
 
Arkansas Code Annotated Section  9-11-409: Application and construction.
This subchapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this act among states enacting it.
 
Arkansas Code Annotated Section  9-11-410: Short title.
This subchapter may be cited as the "Arkansas Premarital Agreement Act".
 
Arkansas Code Annotated Section  9-11-411: Severability.
If any provision of this subchapter or its application to any person or circumstance be held invalid, the invalidity does not affect other provisions or applications of this subchapter which can be given effect without the invalid provision or application, and to this end the provisions of this subchapter are severable.
 
Arkansas Code Annotated Section  9-11-412: Time of taking effect.
This subchapter takes effect July 20, 1987, and applies to any premarital agreement executed on or after that date.
 
Arkansas Code Annotated Section  9-11-413: Repeal.
The following acts and parts of acts are repealed:
  (a) Act 548 of 1981.
  (b) All laws and parts of laws in conflict with this subchapter.
 

Last Updated:  April 25, 2001