Rhode Island: Toughest state in country to invalidate a prenuptial?

Rhode Island may be the toughest state in the country to invalidate or challenge a prenuptial agreement in Court. The RI legislature and the RI Supreme Court has made prenuptial agreements extremely difficult to set aside and invalidate! It is nearly impossible to invalidate a prenuptial in Rhode Island. In this divorce law article, a divorce lawyer in RI explains the validity of premarital agreements in RI. If you are looking for a premarital agreement in Rhode Island, contact RI premarital agreement lawyer, David Slepkow

Can a judge throw out a prenuptial?

  • Only if a Family Court judge determines a premarital agreement is involuntary,
  • The judge must also determine that the agreement is unconscionable (totally unfair)
  • The judge must also determine that there was not fair and reasonable disclosure of the property or financial obligations.
  • It is very difficult, perhaps nearly insurmountable to invalidate a RI prenup!

In order for a prenuptial agreement to be unenforceable, it must be both involuntary and unconscionable!

Divorce in RI- Premarital agreement

RI prenuptial agreement attorney

When you read the case of Marsocci v Marsocci, there can only be one rational response and that is: “Wow, really?”  Marsocci and Rhode Island General Law § 15-17-6 stand for the proposition that in order for a prenuptial agreement to be unenforceable, it must be both involuntary and unconscionable. (Unconscionable means totally and completely unfair) PR8 Web Directory

In Marsocci, The Rhode Island Supreme Court determined that the agreement was unconscionable yet still upheld the RI prenup.

Does this mean that a property settlement agreement that was fair but was involuntary could be enforceable under Rhode Island Law? That seems to be a preposterous proposition. However, according to the clear reading of case law and § 15-17-6, it appears to be the law in Rhode Island! Does that mean a person could argue: ‘the agreement was fair even though I was threatening my girlfriend with a weapon if she didn’t sign the agreement.’ I seriously doubt that any Rhode Island Family Court Judge would uphold a premarital agreement entered into under those circumstances. However, that example illuminates the absurd state of Rhode Island Law concerning Prenuptial agreements.

The seminal case in Rhode Island concerning prenuptial agreements is Marsocci v. Marsocci, 911 A.2d 690 (RI 2006) Supreme Court of Rhode Island. Debra L. MARSOCCI v. David A. MARSOCCI No. 2005-149-A. Decided: December 15, 2006 Present:  WILLIAMS, C.J., and GOLDBERG, SUTTELL, and ROBINSON, JJ. Alfred Factor, Esq., for Plaintiff. Donald R. Lembo, Esq., North Providence, for Defendant. OPINION

“Enforce-ability of a premarital agreement is governed by the Uniform Premarital Agreement Act as codified in § 15-17-6” In Marsocci, the Court stated “In Rhode Island, the enforce-ability of a premarital agreement is governed by the Uniform Premarital Agreement Act as codified in § 15-17-6. ####

The legislature “clearly evidenced the intent to preserve the validity of such agreements”

In Marsocci, the Rhode Island Supreme Court reasoned “We have noted that when the Legislature enacted the provisions of § 15-17-6, it clearly evidenced the intent to preserve the validity of such agreements [and] * * * [maintain] the integrity of such agreements.” Id. at 696. Citing Penhallow v. Penhallow, 649 A.2d 1016, 1021 (R.I. 1994). Penhallow v. Penhallow 649 A.2d 1016 (1994) John PENHALLOW v. Susan M. PENHALLOW. No. 93-137-Appeal. Supreme Court of Rhode Island. November 21, 1994. *1017 Robert D. Oster, Oster & Groff, Lincoln, for plaintiff. William F. Holt, Kirshenbaum & Kirshenbaum, Cranston, for defendant. OPINION LEDERBERG, Justice.

Significant burden upon the party seeking to render the agreement unenforceable

The Marsocci Court further opined “To that end, the Legislature placed a significant burden upon the party seeking to render the agreement unenforceable – that party must prove all of the elements in §§ 15-17-6(a)(1) and (2), and must do so by clear and convincing evidence….We are satisfied that § 15-17-6(b) unambiguously provides that: ‘[t]he burden of proof as to each of the elements required in order to have a premarital agreement held to be unenforceable shall be on the party seeking to have the agreement declared unenforceable’ * * *.”

The Marsocci’s signed a prenuptial agreement four days prior to the wedding

In Marsocci, the husband David and the wife Debra were married on August 26, 1995. The parties signed a prenuptial agreement four days prior to the wedding. Both parties signed the agreement, and it was witnessed. “The trial justice found that each asset David listed was unaccompanied by a dollar value; nor was there a written waiver of Debra’s right to disclosure of the value of her husband’s property and his financial obligations.” In Marsocci, the trial judge determined, “There is no information contained in this agreement as to the values of any of Mr. Marsocci’s assets.” The trial judge found that Debra ” has nothing and agrees to end up with nothing after her marriage…” The husband, David, was represented by counsel and the wife Debra did not have an attorney representing her.

RI top Court upholds premarital agreement

The Rhode Island Supreme Court upheld the validity of the prenuptial agreement holding that Debra did not prove all elements of the Premarital Agreement Act by clear and convincing evidence.

If a person signs a prenuptial without a lawyer is it enforceable?

Yes.  A prenup in Rhode Island is enforceable even if one or both parties did not have a lawyer. It may be preferable for a person to have a Rhode Island divorce lawyer but it is far from required to make the premarital agreement enforceable. In dicta, the Supreme Court of Rhode Island stated: “Although parties to a premarital agreement are not required to have counsel for the agreement to be upheld as voluntary, we nonetheless agree with the proposition that “{w]hether a party obtained independent legal advice is a significant consideration in evaluating whether an antenuptial agreement was voluntarily and understandingly made.”  Holler v. Holler, 612 S.E.2d 469, 476 (S.C.Ct.App. 2005). Marsocci

“The Uniform Premarital Agreement Act does not “require[ ] parties to a premarital agreement to be represented by counsel.” Marsocci v. Marsocci, 911 A.2d 690, 697 (R.I. 2006); see also Penhallow v. Penhallow, 649 A.2d 1016, 1022 (R.I. 1994). However, the absence of independent representation “is a significant consideration in evaluating” whether a spouse knowingly and voluntarily consented to the agreement. Marsocci, 911 A.2d at 697 n.3.” DeCurtis v. VISCONTI, BOREN & CAMPBELL, 152 A. 3d 413 – RI: Supreme Court 2017

The RI Supreme Court determined the prenuptial agreement was unconscionable because it sought to exempt income during the marriage from the marital partnership

In Marsocci, The RI Supreme Court agreed with the trial justice and determined that husband seeking to exempt his income acquired during the marriage in a RI premarital agreement was unconscionable. The top Court determined that such an arrangement, “defies the underpinnings of the marital relationship…”  However, the Rhode Island Supreme Court did not invalidate the RI prenuptial agreement because unconscionably of the agreement is not enough to invalidate the ante-nuptial agreement under RI law.

“The trial justice noted that David’s business, both at the time the agreement was executed and at the time of the divorce, involved “selling one property and purchasing another, and mortgaging one to obtain another, and so on and so forth, using the rent for same to pay his personal and his marital debt.”   The language of the agreement purports to isolate as separate property not only the actual holdings explicitly listed as David’s “Prior Property,” but also seeks to reach into the future to prevent a marital interest arising from income produced as a result of David’s ownership of these assets, notwithstanding the fact that this income comprised the majority of David’s earnings throughout the marriage.   Given the nature of David’s business at the time the agreement was executed and throughout the course of the marriage, we agree with the trial justice that this language clearly  “defies the basic underpinnings of the marital relationship;  namely, that marriage is a partnership where both parties through their mutual efforts obtain assets subject to equitable distribution in the event they cease getting along[,]” and as such was unconscionable at the time it was executed.   Unconscionability alone, however, will not defeat a premarital agreement.”  MARSOCCI v.  MARSOCCI

What are the basic requirements for a prenuptial to be enforceable in Rhode Island?

What can be the scope of a premarital agreement in Rhode Island?

(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, which are 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. § 15-17-3. Content

What topics are beyond the scope of a prenuptial in RI?

Prenuptials in Rhode Island may not bind husband and wife to issues related to custody, child support and visitation. See 15-17-3(b) “The right of a child to support may not be adversely affected by a premarital agreement.”

Can a verbal Prenuptial be enforced in a Court?

No. A prenup must be in writing. HUTNAK v. HUTNAK, 81 A.2d 278 (1951)

Rhode Island premarital agreement attorney

David Slepkow is a Rhode Island divorce attorney concentrating in divorce, family law, restraining orders, child support, custody and visitation.  RI prenuptial agreement lawyer, David Slepkow has authored dozens of prenuptial agrements David Slepkow has been practicing for over 20 years and is licensed in Rhode Island, Massachusetts and the United States Supreme Court. Free initial consultations. Credit Cards Accepted.  RI divorce lawyer David Slepkow was voted a top 3 lawyer in RI by the Providence Journal Reader’s choice awards poll.

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####Section 15-17-6 states:

“(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:

(1) That party did not execute the agreement voluntarily; and

(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, 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) The burden of proof as to each of the elements required in order to have a premarital agreement held to be unenforceable shall be on the party seeking to have the agreement declared unenforceable and must be proven by clear and convincing evidence.

(c) 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.

(d) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.”

RI prenuptial agreement lawyer

If you are looking for a premarital agreement in RI, contact Rhode Island premarital agreement lawyer, David Slepkow

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