Legal Memorandum: Premarital Agreements in ND

Issue: Is a premarital agreement enforceable under North Dakota law if it was executed voluntarily and its terms are not unconscionable?

In North Dakota, an antenuptial, premarital, or prenuptial agreement is enforceable if it is made voluntarily and is not unconscionable.  N.D. Cent. Code § 14-03.1-06 (2009).  The burden to prove that an agreement is not enforceable “is on the party against whom enforcement is sought.”  Id.

A premarital agreement is valid if it was entered into voluntarily by both parties.  The North Dakota Supreme Court has found that an agreement is enforceable if the challenging party had an opportunity to examine the agreement in advance of the execution, was aware of any disparity in the parties’ resources, and had no undue pressure to sign.  Sailer v. Sailer, 2009 ND 73, ¶ 11, 764 N.W.2d 445, 453. 

The ability to seek legal counsel is not required, but appears to be important in determining the overall context in which the agreement was made.  The North Dakota Supreme Court has recognized that the failure to advise a prospective spouse to obtain independent counsel is a significant factor in weighing the voluntariness of a premarital arrangement, but independent counsel is not a prerequisite to enforceability.  Estate of Lutz, 2000 ND 226, ¶ 17, 620 N.W.2d 589, 594-95.  For example, a premarital agreement remains enforceable despite being presented two days before a wedding with no independent legal advice given.  Binek v. Binek, 2004 ND 5, ¶ 7, 673 N.W.2d 594.  It suffices that one party does not act in any manner so as to prevent the other party […]