14-03.2-08. Enforcement

14-03.2-08. Enforcement 1. A premarital agreement or marital agreement is unenforceable if a party against whom enforcement is sought proves: a. The party's consent to the agreement was involuntary or the result of duress; b. The party did not have access to independent legal representation under subsection 2; c. Unless the party had independent legal representation at the time the agreement was signed, the agreement did not include a notice of waiver of rights under subsection 3 or an explanation in plain language of the marital rights or obligations being modified or waived by the agreement; or d. Before signing the agreement, the party did not receive adequate financial disclosure under subsection 4. 2. A party has access to independent legal representation if: a. Before signing a premarital or marital agreement, the party has a reasonable time to: (1) Decide whether to retain a lawyer to provide independent legal representation; and (2) Locate a lawyer to provide independent legal representation, obtain the lawyer's advice, and consider the advice provided; and b. The other party is represented by a lawyer and the party has the financial ability to retain a lawyer or the other party agrees to pay the reasonable fees and expenses of independent legal representation. 3. A notice of waiver of rights under this section requires language, conspicuously displayed, substantially similar to the following, as applicable to the premarital agreement or marital agreement: "If you sign this agreement, you may be: Giving up your right to be supported by the person you are marrying or to whom you are married. Giving up your right to ownership or control of money and property. Agreeing to pay bills and debts of the person you are marrying or to whom you are married. Giving up your right to money and property if your marriage ends or the person to whom you are married dies. Giving up your right to have your legal fees paid." 4. A party has adequate financial disclosure under this section if the party: a. Receives a reasonably accurate description and good-faith estimate of value of the property, liabilities, and income of the other party; b. Expressly waives, in a separate signed record, the right to financial disclosure beyond the disclosure provided; or c. Has adequate knowledge or a reasonable basis for having adequate knowledge of the information described in subdivision a. 5. If a premarital agreement or marital agreement modifies or eliminates spousal support and the modification or elimination causes a 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, on request of that party, may require the other party to provide support to the extent necessary to avoid that eligibility. 6. A court may refuse to enforce a term of a premarital agreement or marital agreement if, in the context of the agreement taken as a whole: a. The term was unconscionable at the time of signing; or b. Enforcement of the term would result in substantial hardship for a party because of a material change in circumstances arising after the agreement was signed. 7. The court shall decide a question of unconscionability or substantial hardship under subsection 6 as a matter of law.