Furthermore, people and circumstances change, so that an agreement that is fair at inception might be become less so over time. This is why the Act focuses on unconscionability at the time enforcement of the agreement is sought, as opposed to when it is executed. The burden of proof is on the party seeking to establish invalidity, and that burden is by clear and convincing proofs, meaning that a mere preponderance of the evidence will not suffice. Given these considerations, practitioners often recommend to their clients the structure of a sliding scale . The longer the marriage subsists, the greater the amount of property or support to be paid by the supporting spouse to the other party.
Some agreements also provide for a sunset clause.
Thereafter, in the event of divorce, the parties respective rights revert to whatever is provided under applicable matrimonial law. At the heart of any valid premarital agreement is the requirement of disclosure. Thus, ensure that the parties exchange current net worth statements, setting forth their respective assets and liabilities, together with copies of their current income tax returns. Indeed, the Act requires that a statement of assets is to be annexed to the agreement. Moreover, the Act further provides that an agreement might be set aside for failure to make disclosure of each party s earnings, property and financial obligations While the Act contemplates and permits a party to knowingly waive full disclosure, the better practice is to insist on this requirement, to avoid a later attack based on concealment or even fraud.