March 10, 2017
By Mary Cushing Doherty
This post originally appeared in the Journal of the AAML, Vol. 29, No. 1, 2016.
When a couple is planning to marry, either or both may be urged by friends, family, a financial advisor and/or business partner to consult an attorney to prepare a premarital agreement. For many hopeful prospective brides and grooms, the suggestion is immediately rejected. They will not consider a premarital agreement in contemplation of “The D Word.” They abhor the thought of reading a premarital agreement with detailed provisions and limitations on rights and interests in event of divorce. They recoil from even thinking about problems during their marriage. Yet addressing their shared plans could be practical and could strengthen their commitment. In some cases one fiancé wants to protect certain interests and is unaware of options that will satisfy planning needs without mentioning divorce. The couple or fiancé may welcome suggestions and options without using the D word in premarital documents.
The lawyer needs to anticipate and address a wide range of motivations. The lawyer needs to study the primary goals of the client and reasons for the premarital plan. A client may instruct counsel that the word “divorce” shall not be in a premarital agreement for religious or emotional reasons. In some cases the fiancé will want some language to address economic concerns that the couple may share or concerns raised by insistent third parties. The lawyer may recommend a unilateral document be drafted, such as a trust signed by one fiancé to provide for premarital planning without involving the other spouse. In other situations, a fairly limited premarital agreements could be drafted to address special planning needs. Premarital plans can be made that do not mention divorce, but will actually be protective of the client if marital problems lead to a divorce.
The first section of this article will describe criteria for a premarital agreement under the Uniform Premarital and Marital Agreements Act including meeting the requirements of the jurisdiction at time of marriage, and considering the risks if a divorce occurs in another jurisdiction and the premarital agreement is subject to challenge. The second section addresses terms of premarital agreements that are respectful of religious restrictions on a premarital agreement and address a range of economic plans without mentioning divorce. The third section describes how one spouse avoids the prospect of a premarital agreement by placing premarital assets in an irrevocable settlor trust, a Domestic Asset Protection Trust.
II. PREMARITAL AGREEMENTS SANS MENTION OF DIVORCE
A. Requirements at Execution; Challenges in a Different Jurisdiction at Divorce
The Uniform Premarital and Marital Agreements Act (UPMAA, or the Act) drafted by the National Conference of Commissioners on Uniform State Laws, was approved and recommended for enactment in all states at the July, 2012 Annual Conference and published January 2, 2013. The UPMAA provides model legislation for premarital (and marital) agreements. The Act states in its definitional section:
“Premarital Agreement” means an agreement between individuals who intend to marry 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 non-occurrence of any other event.
The Comment to the definitions notes that while most premarital agreements will be stand-alone documents, a fragment of a writing that deals primarily with other topics could also constitute a premarital agreement for the purpose of the act.
Lawyers advising clients due to marry need to caution clients that the jurisdiction at time of dissolution could affect which state’s law will be applied when the premarital agreement is interpreted. In its section regarding what law governs, the UPMAA provides:
The validity, enforceability, interpretation and construction of a premarital agreement or marital agreement are determined:
(1) by the law of the jurisdiction designated in the agreement if the jurisdiction has a significant relationship to the agreement or either party and the designated law is not contrary to a fundamental public policy of this state; or
(2) absent an effective designation described in Paragraph (1), by the law of this state, including the choice-of-law rules of this state.
Whenever an attorney drafts a premarital agreement, the attorney should give advice regarding to the possible problems with enforcement based on where the parties move and reside thereafter.
When the premarital agreement is drafted the client will want assurance that the agreement will be enforced regardless of where the parties ultimately reside.
Most states require consideration (often simply the occurrence of the marriage), access to independent legal representation, voluntary execution, and disclosure of finances. While many states require the agreement not be unconscionable or in violation of public policy, these requirements are not universal.
And in some states, fairness is measured at execution, others at enforcement.
In a state like Pennsylvania, current law clearly favors the enforceability of a premarital agreement as long as full and fair disclosure is provided
or specifically waived.
Pennsylvania caselaw applies the same principals to both premarital and marital agreements. The Divorce Code
allows a party to waive economic disclosure in a divorce agreement and caselaw applies this principal to premarital agreements.
When a fiancé had possession of her engagement ring, grossly overvalued in the premarital agreement, it was found she and had adequate opportunity to verify its value and could not claim fraudulent misrepresentation in the premarital agreement.
Other state laws have more rigorous requirements: giving significant power to the reviewing court to refuse to enforce where the court deems the terms to have been unconscionable; to refuse enforcement where it is deemed to create a substantial hardship for a party; to find material change in circumstances arising after the agreement was signed. Under the enforcement provisions of the UPMAA, the enacting state can select among optional clauses that the court may refuse to enforce a term of a premarital agreement if it finds the term was unconscionable at time of signing. And a further optional provision allows a find of substantial hardship at enforcement due to marital change of circumstances.
In a state protective of the agreement, like Pennsylvania, these factors, unconscionability and financial hardship, are irrelevant.
In states where the reviewing judge has the discretion to decide on unconscionability or substantial hardship, even if the couple agreed Pennsylvania law would be the governing law, the reviewing court could determine the premarital agreement is contrary to a fundamental public policy of the reviewing state. To avoid such challenge, the parties may be well advised to address the likely financial circumstances should not appear to risk of finding unconscionability (for example, force a former spouse to become a public charge).
The client who seeks premarital planning without mentioning divorce in the document may well turn against counsel later if the lawyer did not anticipate that unhappy prospect of divorce. A client who does not want to mention “The D Word” may still instruct counsel to draft protective provisions, just in case the marriage fails. Under the UPMMAA financial disclosure will be required for economic terms. It is the responsibility of the lawyer to caution the client as to the risk that the reviewing court, different from the state of execution and the stated choice of law, will scrutinize a premarital agreement. A plan that may pass muster in the execution state could be upended in the reviewing state. In most cases if the agreement doesn’t specify consequences for divorce, the likelihood of unfairness, unconscionability and violation of public policy, will likely be diminished. Hereafter are suggested clauses for a premarital sans the “D” word.
B. Premarital Agreements with a Catholic Fiancé or Couple
An astute lawyer will identify issues when a fiancé has a conservative religious or cultural background that does not allow a pre-marriage contract that contemplates divorce. For example, the intended groom talks to an attorney about preparing a pre-nuptial agreement because his family wants the old family money to be protected in the event the parties divorce. When introductory matters are reviewed, such as the place of the wedding, the attorney discovers that the bride-to-be is planning a Catholic wedding service. The attorney ought to tell the groom that his Catholic bride may well refuse to sign a pre-nuptial agreement describing the consequences of divorce. The groom may refuse to pay for the lawyer’s time to draft a document that will be unacceptable to his Roman Catholic fiancé.
The Code of Canon Law provides: “A marriage subject to a condition about the future cannot be contracted validly.
To provide in a premarital agreement that Wife will marry Husband if there are specific rights or waivers in event of divorce clearly presents a condition precedent to the sacrament of marriage. The Canons of the Catholic Church reaffirm the lifetime sacramental commitment of the spouses.
Premarital agreements are not expressly prohibited and can legitimately be executed by a Catholic spouse. A typical example addresses the interests of a widow who is already a parent. Defining separate property to protect inheritance interests of each spouse’s children.
The priest officiating the wedding may require any premarital agreement be sent to the Catholic diocese’ Department for Canon and Civil Law Services for evaluation to determine if the agreement would render the marriage invalid.
Lawyers represent clients from many different religious backgrounds and it is the lawyer’s responsibility to understand the basic religious principles that affect the negotiation and drafting of a premarital agreement. Since the Roman Catholic annulment proceeds under Canon law which requires the church’s tribunal to determine whether the marriage was entered into validly or invalidly ab initio
. The tribunal will analyze whether one or both parties failed to validly, i.e. was it subject to a condition about the future.
Logically one way to establish a basis for Catholic annulment is for the tribunal to find that the marriage was invalid from the beginning. Other listed impediments to a valid sacramental marriage under Canon law addresses incapability to contract, ignorance of permanent partnership, description, etc.
In many ways the Roman Catholic Marriage, subject to the Canons reflects a religious premarital agreement in the typical vow to love, honor and obey, until death do us part. In comparison, both Judaism and Islam also have premarital agreements as part of the marriage. The Jewish ketubah
, an integral part of a Jewish marriage contemplates the grooms responsibility to his bride, including the jurisdiction of the Bet Din
(Jewish house of judgment) in the event of death. Under Jewish law, however, the Husband decides whether to give his Wife a get
(Jewish divorce); and the Husband must act without constraint of his own free will. So the Jewish tradition allows the Husband to control whether a Wife divorced civilly, will receive a religious divorce.
New York State legislature enacted the Get
requires divorcing parties in a religious ceremony to lift religious barriers to remarriage. If Jewish law provides a coerced get
is not valid, New York law appears to create an inherent conflict if a Husband does not choose to file for a get
In the Islamic tradition, marriage is a contractual arrangement devoid of sacramental significance.
The Islamic contract (mahr
) is negotiated on behalf of the Wife by her Father, which includes payment of a dower at marriage and deferred dower paid in the event of death or divorce. If the Wife seeks a divorce she may be required to repay the mahr
paid at marriage.
may provide for a nominal or astronomic payment by Husband to Wife in the event of his death or decision to divorce. In the United States some jurisdictions ignore the prenuptial agreement for payment of the mahr
and apply civil law; others treat the mahr
as a prenuptial agreement that limits payment to the designated amount, even if it is a token amount which by civil standards may be extremely nominal.
Indeed, Islamic law addresses the parties’ expectations for divorce at the time they plan their marriage.
C. Specific Premarital Clauses not in Contemplation of Divorce
Regardless if the motivation is personal, moral or religious, a premarital agreement can address specific or generalized financial plans of a couple without mentioning divorce. While a Catholic fiancé should not sign a premarital agreement contemplating divorce, communication, finances, lifestyle decisions (typical Pre-Cana topics) can lead to a healthy marriage or stronger commitment. Psychologically healthy people should be willing to address their expectations which can increase the chance of a successful marriage.
- Payment of Premarital Debt
A couple wants a premarital agreement because parents of the bride are concerned about the infusion of premarital funds to elevate the parties’ lifestyle during marriage. A bride-to-be who has received money from loved ones to give her an enhanced economic start in life plans to use those funds once married to benefit the couple. She is marrying her true love who is deeply in debt. As they make their wedding plans, they discuss using her reserved funds to pay off the groom’s debt. The two of them want to qualify for a mortgage and purchase their first home. Her family does not want her contributing her premarital money, particularly that which was funded by other family members. The bride’s family arranges for an attorney consultation, and is monitoring very closely whether or not their daughter is “cooperating.” Ethically, the lawyer for the daughter represents her interests, not her parents who may be paying the legal fees. The daughter instructs her attorney: “You may not mention divorce in our agreement, or I won’t sign.”
Under such circumstances, the scrivener will draft without The D Word. The lawyer advises that the bride’s money, which will be used to pay off the groom’s debt, will be the subject of a loan, with repayment over time. Accordingly a detailed Promissory Note is prepared acknowledging the groom’s premarital debt will be paid with the bride’s premarital assets. The Note should state an interest rate, so one is not imputed. The Note will provide the bride has the option to enforce the periodic payment on the Note, to extend the repayment schedule with interest, or to release the groom from payments by periodic gifts. One can envision if the marriage goes well, the forgiveness of the periodic obligation of the husband; such gifts should be formalized in writing when the bride affirmatively waives one or more of the periodic payments. This required formality will better protect the bride. The repayment of the obligation will have nothing to do with the parties’ marital status. Consequently, the obligation continues regardless of death, separation, or divorce. The Note will provide effective, but limited, protection addressing the designated assets and liabilities, specifically the funds utilized to pay the groom’s separate debt, using the bride’s premarital assets. The document need not reference divorce or separation.
- Waiver of Interest in Premarital Businesses or Other Designated Assets
The waiver of interest in one or more assets by agreement, without mentioning separation or divorce, will require negotiations like a typical premarital agreement. Any agreement should be based on full and fair disclosure of the asset in question. If the bride is a business owner and her partners demand she sign a premarital agreement to protect the business from a possible divorce, the bride will ask the groom to disclaim any interest in her business forever, (regardless of marital bliss or strife). The agreement should clearly provide for financial disclosure. A Confidentiality Agreement signed by the groom will protect proprietary information. The groom should have access to business books and records. If he opts to forgo review, a waiver should be signed. The agreement will more likely pass a fairness challenge if the groom receives specified economic benefits in return. For example, the parties agree to the joint use of income from the business for marital bills and asset acquisition. With independent representation for the husband and acknowledgement of adequate consideration, the terms are more likely enforceable. The couple has to decide if such terms satisfy their needs legally, and the agreement coupled with the commitment to marriage need not refer to separation or divorce. The waiver of interest applies regardless of marital status. The lawyer should advise the parties of the rights and responsibilities in the event of divorce, and the risk of divorce even though the agreement makes no mention of divorce.
- Real Estate Agreements
Often premarital agreements focus on one party’s residence, which is expected to become the joint residence after marriage. By signing an agreement about use and shared occupation of the residence, clearly identified and valued, the parties can address various scenarios, without referencing divorce. In most states the premarital value of a separately owned asset (or liability) is by definition non-marital; therefore, the any agreement noting the asset value(s) sets a baseline upon which a court could later rely in the event of a marital separation.
An agreement addressing the house may provide that if the bride owned the house before marriage, she will continue to own the house with no claim by the groom. If the groom intends to move into the house and contribute toward the mortgage payments and other expenses, the parties could acknowledge this and go several steps further. The parties can agree the groom will acquire an equitable interest limited to the increase in value after the agreed date of marriage value. The agreement could provide that the groom’s interest in any jointly titled house would be a minority interest or no interest at all. Such terms do not provide for the extensive protection possible with a premarital agreement that addresses separation and divorce, but they reduce controversy over the claim to a premarital home.
Often when couples re-marry, the marital home, will eventually pass to the owner’s children. An agreement should be drawn anticipating consequences if the owner becomes too ill to remain in the home or dies. If the owner reaches an agreement with her fiancé, this communication before the marriage will avoid problems with children later. If the owner becomes ill or dies, the premarital agreement provides a clear message to children about the owner’s wishes as well as financial plan to preserve the children’s interest in the home. And if possession passes to the non-owner spouse after disability or death of the owner spouse, the obligation to support the home can be clearly outlined in the premarital agreement .
III. PREMARITAL TRUST TO EXCLUDE ASSETS FROM CONSIDERATION AS PART OF THE MARITAL ESTATE
All assets owned by a fiancé in her or his name alone, or with someone other than the intended spouse, should be carefully described and disclosed if the parties sign a premarital agreement. While clear waiver of disclosure of premarital assets may be sufficient to uphold the enforcement of a premarital agreement,.
this is surely risky if a reviewing court finds the failure to disclose, even if waived is contrary to public policy and refuses to enforce premarital agreement terms. Premarital assets which are by definition non-marital, often have an impact on the equitable distribution of the marital estate. In some states the increase in value of the premarital assets create a marital value acquired during the marriage.
A reviewing court may determine non-marital assets generate income available to pay child support, spousal maintenance and post-divorce alimony. 
Many premarital agreements involve the economically superior fiancé asking the other spouse (who may or may not have their own resources) to waive any claim or interest to the premarital assets and to further waive rights that may be available in the event of death or divorce relative to the premarital estate, including income generated, assets acquired in exchange and the increase in value of the premarital assets. The economically superior fiancé who does not want to disclose premarital assets; does not want to seek a waiver of disclosure; fears the risk of waiver being overturned by a reviewing court; or does not want to broach the topic of any premarital agreement signed by the fiancé has an option which counsel can propose which involves no disclosure to or a mutual agreement with one’s fiancé.
A Domestic Asset Protection Trust (DAPT) is available in sixteen state: Alaska, Colorado, Delaware, Hawaii. Mississippi, Missouri, Nevada, New Hampshire, Ohio, Oklahoma. Rhode Island, South Dakota, Tennessee, Utah, Virginia and Wyoming 
In DAPT states an irrevocable self-settled trust provides specified latitude and access to funds by the settlor as a discretionary beneficiary. Assets put in trust before the wedding can keep those assets outside the marital estate because they are no longer owned by the grantor.
Such funds are placed in trust, without disclosure to or consultation with the fiancé. No mutual premarital agreement is signed; thus, the full and fair disclosure requirement (or waiver) is not applicable.
Domestic Asset Protection Trust laws are often modeled after Delaware legislation first passed in 1997’ A DAPT is available under South Dakota law and it’s provisions are touted as top-rated DAPT state for protecting the interests of the grantor. The DAPT features in Delaware and South Dakota are outlined below.
Delaware’s Qualified Dispositions in Trust Act
defines the Trust Instrument as one that provides that the interests of the transferor (or other beneficiary) may not be transferred, assigned, pledged or mortgaged, whether voluntarily or involuntarily, before the qualified trustees actually distribute the property or the income therefrom to the beneficiary.
At least one of the trustees must be qualified, defined as a resident of Delaware or an institution (bank or trust company) which is qualified to do business in Delaware. The Delaware qualified trustee must be in control of some of the property, as well as maintain records, arrange for preparation f the trust’s fiduciary income tax return, participate in administration, etc.
The Trust Instrument must specifically incorporate Delaware law and provide an irrevocable spendthrift clause. Irrevocability will not be violated if the grantor receives income and in specified situations distribution of principle, so long as within the discretion of the trustee is set forth in the trust.
The recourse of a creditor is generally limited to those whose claims arose before the disposition of the assets into the trust. The legislation provides a limited option for a creditor whose claim arose post-funding, like a spouse who married after the trust was funded. The creditor will only succeed in cancelling the disposition into trust of the creditor can prove the funding was done with actual intent to defraud, which claim must be filed within 4 years of the disposition of the subject property into trust.
The South Dakota law allowing a Domestic Asset Protection Trusts (DAPT) uses this directed trust model to create a legal framework so trustees and beneficiaries (including the grantor) work with asset managers and independent trust companies of their choosing.
The settlor may appoint the qualified trustees as trust advisor, an administrative trustee (distinct from the trust advisor), and an investment trustee/committee, with parallel requirements to those in Delaware law.
The investment trustee/committee may select outside investment advisors and/or managers to manage the trust investments. Every trustee need not be qualified under the statute. A settlor may provide input under the terms of the trust, but does not serve as a co-trustee.
The South Dakota DAPT, as in Delaware, allows the settlor to receive financial benefits from the trust, including income and discretionary principal distributions. While the assets are protected from creditor claims and lawsuits, the directed trust structure allows control over the investment management function. Distinct from Delaware, under South Dakota law, there is only a two year “look-back” Therefore someone (like a fiancé) who becomes a creditor subsequent to the transfer of property into trust, much make a clear and convincing challenge under South Dakota’s Voidable Transactions Act, within two years after the transfer is made.
The fiancé who puts premarital assets into a Domestic Asset Protection Trust does so outside the disclosure requirements of premarital agreement statutes and therefore without the responsibility of disclosure. In a marriage that crumbles, one can anticipate that the reviewing jurisdiction’s voidable transfer statute
will be invoked. The divorce court may seek to identify DAPT assets to address the needs of a dependent spouse or minor children who are not enjoying the benefits available to the settlor as noted by Linda Lea Viken in her presentation at the American Association of Matrimonial Lawyers.
In South Dakota, however, after the two-year lookback has elapsed, the South Dakota courts will refuse to require the DAPT trustees to respond to discovery.
In light of the caselaw that developed surrounding challenges to premarital agreements, counsel for the client funding a DAPT will want to review the protections afforded by the Uniform Voidable Conveyances Act (UVCA).
Voidable transactions relating to future creditors are those made with actual intent to defraud the creditor, which is rarely proven without direct evidence under the totality of the circumstances. While the creditor need not show proof by clear and convincing evidence (traditionally associated with fraud claims), the burden rests with the creditor.
Creditors under UVCA can seek to show constructive fraud, under one of two tests: first, where the debtor is about to engage in a business or transaction for which remaining assets of the debtor were unreasonably small in relation to the business or transaction; or second, where a debtor reasonably should have believed the debtor would incur debts beyond the debtor’s ability to pay such as they came due. Neither test permits proof of fraud by hindsight.
It strains the imagination to think marriage is a one of the transactions or businesses to which this analysis of constructive fraud would apply.
When counselling the client, the lawyer should explain out the Conflict of Laws issue discussed above (in the context of a premarital agreements) will be relevant in cases of a DAPT. Will the reviewing state be willing to apply the law of the DAPT jurisdiction; will the reviewing jurisdiction give Full Faith and Credit to the DAPT state if the reviewing state finds a DAPT is contrary to public policy? Will a reviewing state that allows statutory exemptions (common for child support and in some cases alimony) supersede the DAPT protections for the obligor? One can imagine the litigation over voidable transactions proof particularly within the lookback windows: two years for South Dakota or four years for a Delaware DAPT.
A Domestic Asset Protection Trust executed before the marriage allows the financially secure spouse to avoid uncomfortable and perhaps confrontational conversations before the marriage. In order to claim a voidable conveyance, the spouse must claim the transfer to the DAPT pre-marriage was a voidable transfer and raise the claim with the applicable statute of limitations; for example, within two years of funding in South Dakota, or within four years in Delaware. The trust is designed to preclude consideration of assets put in trust from being treated as part of the marital estate. Control in a DAPT situation is curtailed by the terms of the trust; however DAPT legislation is designed to allow trust terms allowing the grantor beneficiary certain have directive input.
It is easy to envision cases in which business partners and family members (and others who seek to exclude involvement of the new spouse with assets currently owned by the bride/groom to be) will promote the use of the Domestic Asset Protection Trust. Couples marrying in their later years who have children of a prior marriage that ended in death or divorce could address the concerns of family members and loved ones by creating the Domestic Asset Protection Trust before embarking on the new marriage.
Premarital planning based on communication can be used to strengthen partnership before marriage. If a fiancé does not want to talk about premarital planning, a Domestic Asset Protection Trust or other trust vehicle could be formed before the marriage to secure the separate interests of one party. A limited purpose premarital agreement that provides some protections without mentioning divorce can be drafted. A practical lawyer will draft an agreement to best protect the couple in the event of divorce, without reciting the possibility of divorce.
In American society fewer couples are making the commitment to marry, and more young people are growing up in families where their parents have divorced.
While most lawyers encourage a client to write a premarital agreement that addresses divorce, a couple will benefit from recognizing the need to make a financial plan albeit without The D Word. Couples who want to enter the marriage recognizing each other’s financial position and financial priorities, can work with lawyers to prepare a premarital agreement, without The D Word. The dialog will allow the parties to talk about finances in a mature, logical and constructive way. It would be better to discuss financial issues before the marriage than to enter the marriage starry-eyed and fumble along making financial mistakes that eventually cause turmoil. Talking about their finances, their plans and their priorities before they marry could well be the ticket to a successful partnership, marriage and the prospect of a strong and healthy marriage. In the case of a spouse using a DAPT to assure pre-marital asserts remain non-marital, one may opt to disclose such to avoid the specter of challenges later that the funding of the trust was a voidable transaction. While starting a discussion of finances can be difficult and sometimes disruptive as a couple plan their marriage, there is also likelihood that the premarital planning will become a great testing ground for the couple’s ability to talk about tough issues and find a solution that makes sense for both of them throughout their marriage.
Unif. Premarital & Marital Agreement Act § 2 (2015)
Unif. Premarital & Marital Agreement Act § 2 (2015)
Unif. Premarital & Marital Agreement Act § 4 (2015)
Joan F. Kessler, Can You Choose the Law to Govern your Marital Agreement
, 8 J AM, A CAD MATRIMONIAL LAW, 107 (1992)
Kessler at 112
Kessler at 114-115
Simeone v. Simeone, 581 A.2d 162 (Pa. 1990); Karkaria v. Karkaria, 592 A.2d 64 (Pa. Super. 1991)
Lugg v. Lugg, 64 A.3d 1109 (Pa. Super. 2013)
Lugg, 64 A.3d 1109 at ______
Porreco v. Porreco, 811 A.2d 566 (Pa. 2002)
Unif. Premarital & Marital Agreement Act § 9(f) (2015)
Colonna v. Colonna, 791 A.2d 353 (Pa. Super. 2001)
Kessler at 122
Can. 1102 §1
Foster, Cherly I, When a Prenup & Religious Principles Collide, 33-WTR Fam Advoc 34, 35.
Doyle, Ken, email@example.com
, posted November 17, 2011
Foster at 35
Can. 1102 §1
Can. 1095, 1096 §1, 1098
Traum, Lara, How Mediating Halakhic Prenuptial Agreements Honors Jewish and American Law and Builds Happy Families, 17 Cardozo J, Conflict Resol 179
N.Y. Dom. Rel. Law §236B (McKinney Supp 1993)
Traum at 186
Foster at 36 citing
Wilson, Robin Fretwell, Privatizing Family Law in the Name of Religion, 18 Wm. & Mary Bill Rts J. 925 (2010), at 929
(to be provided)
Al-Hibri, Azizah Y, Symposium on Religious law, 16 Loy L.A.INt’l & Comp. L.J. 22 (1993) at 69
Poliacoff, Jerome H., What Does Love Have to Do With It., 33-WTR Fam Advoc. 12, 15.
Shaftel, David G., ACTEC Comparison of the Domestic Asset Protections Trust Statutes, Updated Through September, 2015)
Metric, Marc & Worthington, Daniel G., Domestic Asset Protections Trusts: Which Jurisdictions Are the Most Effective to Set Up this Powerful Tool?, Trust and Estates Magazine, January, 2013a
71 Del Laws c.159 Sections 1; 12 Del. C. Sections 3570-3576
12 Del. C. Section 3507, (11) c.
12 Del. C. Section 3570 (8)
12 Del. C. Section 3570 (11)
Warren, David A, Use of Asset Protections Trusts in Lieu of or in Conjunction with Prenuptial Agreements, Bridgeford Trust Company
The criteria in South Dakota for establishing a DAPT are:
(i) The DAPT trust must be irrevocable;
(ii) A trustee must be appointed with the discretion to administer the trust and make discretionary distributions;
(iii) A trustee must be appointed that is a resident of the jurisdiction in which the trust is formed;
(iv) The trust must contain a spendthrift clause, which restricts the transferability of a beneficiary’s interest in the trust property, whether involuntary, before the trustee actually distributes the property to the beneficiary;
(vi) The trust must be properly administered in accordance with trust language and applicable state laws; and
(vii) Proper trust administration, accounting, and record keeping are essential for protection of assets in a DAPT
SD CODE 55-16-2 and Warren at 6, adding that for a prenuptial plan “The trust must be established and funded prior to marriage.”
SD. CODE Section 55-16-10
Recently many jurisdictions followed the recommendation to replace a Uniform Fraudulent Conveyance Act with the Uniform Voidable Transactions Act; uniformlaws.org/LegislativeFactSheet, Fraudulent Transfer Act - now known as Voidable Transactions Act
Viken, Linda Lea M, Guarding the Home Front; Protecting the Spouse AAML Mid-Year Meeting (2016)
South Dakota is the only DAPT state that has a total privacy seal forever on the existence of a trust, its provisions or beneficiaries. Warren at 4
Monaco, Gregory M., A Practitioner’s Primer on the Pennsylvania Uniform Fraudulent Transfer Act, Pennsylvania Bar Association Quarterly, January 2015, 18-46.
Monaco at 29-30
Monaco at 30-31
See 5 Problems with Domestic Asset Protection Trusts, www.thinkadvisor.com
, March 29, 2012 suggesting offshore trusts are clearly preferable over DAPTSs.
June Carbone & Naomi Cahn, Marriage Markets: How Inequality Is Remaking the American Family ___ (2014).