A prenuptial agreement is a written contract between prospective spouses formed in anticipation of marriage. The agreement specifies each spouse’s property and financial rights if they later divorce.
With more than half of marriages in the United States ending in divorce, it is financially wise to consider a prenuptial agreement.
Who Should Consider Obtaining a Prenuptial Agreement?
Below is a list of people who should consider obtaining a prenuptial agreement:
- Couples entering their second or third marriage with substantial assets.
- You own a business or are a partner in a company.
- You have a child or children from a prior relationship or marriage.
- You have substantially more assets than your partner.
- You earn considerably more money than your spouse.
- You are financially dependent on your partner.
- Your spouse has significant debt.
- You plan to stop working to raise children.
What are the Essential Elements of a Prenuptial Agreement?
Even though most states have their own laws regarding what is required for a prenuptial agreement to be enforceable, there are a few things that are universal in all prenuptial agreements. For a prenuptial agreement to be valid and enforceable, it must include the following:
- The prenuptial agreement must be signed voluntarily, and it must be fair.
- The prenuptial agreement requires full disclosure of each party’s assets, obligations, and debts. A court can declare the agreement void if the parties do not disclose all their assets and liabilities.
- The prenuptial agreement cannot require a party to waive their retirement benefits.
- The prenuptial agreement cannot attempt to agree on a child support amount or eliminate child support. Any efforts to do so will be declared unenforceable.
- Agreements related to alimony are enforceable in a prenuptial agreement.
- A single attorney should not represent both parties to the prenuptial agreement unless both parties sign a waiver of the attorney’s potential conflict.
- The required timeline for reviewing the agreement before signing must be followed. The timeline varies from state to state.
What Provisions Should Be in a Prenuptial Agreement?
There are a few things to think about and plan for in a prenuptial agreement. Before entering into a prenuptial agreement, parties must examine the following factors:
- Depending on state law, parties must differentiate between separate and marital property or community property. In the case of a divorce, prenuptial agreements should stipulate how the property would be divided.
- A premarital agreement can insulate one spouse from the other’s debts. This is important to consider if one party brings substantial debt into the marriage. A prenuptial agreement can limit the debt liability exposure of the parties.
- A prenuptial agreement may also provide for children from a previous marriage or relationship. This covers the property division in the event of a divorce.
- A prenuptial agreement may also stipulate the division of a family heirloom. The contract may dictate that a family heirloom, business, or future bequest remain within the family of origin. In a divorce, your spouse has no title to it.
- A prenuptial agreement should address the couple’s financial plans and objectives for the future. The agreement should discuss how the couple plans to save and invest for retirement. It should also specify how much money from earnings will be placed into joint or separate bank accounts and if the money earned during the marriage will pay bills that were in place prior to the marriage.
- A prenuptial agreement can stipulate how the couple’s household expenses will be handled, detailing who will be in charge of paying the bills and what each party will pay in terms of money.
- A prenuptial agreement should address the payment of past debts. Creditors can seize marital property even if only one spouse is on the debt agreement. In the event of a divorce, a prenuptial agreement can protect the debt-free spouse from taking on the other’s debts.
- A prenuptial agreement should address the inheritance rights of children from a prior relationship.
- A prenuptial agreement can be used to ensure that family heirlooms, business shares, and real estate stays in the birth family and don’t go to the family of the divorced spouse.
- A prenuptial agreement ensures that both people’s wills and testaments will be carried out the way they want and that the surviving spouse can’t change them. It is important to note that a prenuptial agreement is not a replacement for a will or trust. The prenuptial agreement can only be used to strengthen these instruments.
- A prenuptial agreement should discuss if alimony will be paid in the event of a divorce.
- The prenuptial agreement should identify which state has jurisdiction if there is a question regarding the agreement’s enforceability.
What Factors Will Render a Prenuptial Agreement Unenforceable?
There are various reasons why a court might find a prenuptial agreement void and unenforceable. If a prenuptial agreement is ruled unenforceable, the spouses’ assets will be divided per the dissolution of marriage rules of the parties’ state of residence.
The courts have said that the following things make a prenuptial agreement unenforceable:
- The agreement must be signed before the wedding. Both parties must sign a prenuptial agreement before the marriage or civil union to be valid. If a prenuptial agreement is not executed before the wedding, it may not be enforceable against either spouse.
- Review by an attorney. In addition, several states mandate that each party be represented by independent attorneys and have a statutory review period before signing the agreement. The reason for this is that it could be construed that a party was coerced into signing the contract under the threat that the marriage would not take place otherwise.
- Inadequate Time: Just as appropriate execution is essential, most states have a statutory deadline for the parties to study the contract before signing. For example, in California, the person against whom enforcement of the agreement is sought must sign the agreement within seven days from the date they were provided with the agreement.
- Child Support. Furthermore, the majority of prenuptial agreements cannot contain invalid provisions. If a party puts a condition in the agreement where child support responsibilities are waived if the marriage ends in divorce, this is an example of an improper purpose. In some states, infidelity clauses are also invalid, as are any other terms that violate the law.
- False or Incomplete Information: A prenuptial agreement necessitates that both parties provide complete and accurate information. Full disclosure includes the income, assets, obligations, and debts of BOTH parties to the agreement.
- Unconscionability: An unconscionable prenuptial agreement will not be enforced. Generally, a premarital agreement is unconscionable if it stipulates that one spouse will receive all the property and the other will receive all the debts. If the court determines that unequal bargaining power leads to substantial and substantially unjust outcomes, it will likely declare the prenuptial agreement unconscionable.
What Happens If There Is No Prenuptial Agreement?
In the absence of a prenuptial agreement, your state’s laws will govern the property division in the event of a divorce. Depending on the state you live in, the property acquired during a marriage is referred to as either communal property or marital property. The distribution of your premarital property may be governed by state law.
What Is a Postnuptial Agreement?
A postnuptial agreement is a contract signed after the parties have already been married. A postnuptial agreement functions similarly to a prenuptial agreement in determining how couples will divide their property and assets in the event of a separation or divorce.
Can You Contest a Prenuptial Agreement?
You should consult a family law professional immediately if you have signed a prenuptial agreement and are currently going through a divorce. The family law attorney can evaluate the signed prenuptial agreement and establish its enforceability. If the agreement is enforceable, the attorney can assist you in safeguarding your rights and assets while you negotiate the challenging road ahead.
Personal preference determines whether or not a prenuptial agreement is necessary. However, a lawyer can assist you in evaluating your options and concerns before marriage.
If you intend to be married, you should speak with an experienced family lawyer in your state who specializes in premarital agreements. Your lawyer can help you determine whether a prenuptial agreement is appropriate for you and your prospective spouse.