Premarital Agreement

AuthorJeffrey Lehman, Shirelle Phelps

Page 65

A contract made in anticipation of marriage that specifies the rights and obligations of the parties. Such an agreement typically includes terms for property distribution in the event the marriage terminates.

A premarital agreement, also known as a prenuptial or antenuptial agreement, is a contract between two persons who intend to marry. All states recognize premarital agreements through statutes or court decisions.

A premarital agreement is an unusual contract. It is an agreement between marrying persons that, at least in part, contemplates the breakup of the marriage. The subject matter of the agreement is unique: no other contract can address such matters as CHILD CUSTODY, child education, and spousal maintenance. The relationship of the parties is special: the contract is made not by two parties operating at arm's length, but by two persons who are preparing to marry. The contract is enforceable without consideration or the exchange of value, whereas most contracts require consideration. Finally, the contract may not be enforced until years after it was first formed. Although they are exceptional, premarital agreements have become increasingly popular in the United States.

The practice of making premarital agreements is ancient. Marrying Jews have made marital contracts called ketubahs for more than two thousand years. The modern secular premarital agreements that exist in the United States can be traced back to sixteenth-century England. Many of the first premarital agreements were used by women as a way of protecting their own property. Until the nineteenth century, women were considered the property of their husbands, and what was the premarital property of a wife became the property of her husband. A premarital agreement became the only way for a woman contemplating marriage to retain control and possession of her own property.

Initially, the rights of women in premarital agreements were limited. Women had few contractual rights, and courts often struck down premarital agreements that favored women. This situation changed in the mid-to late nineteenth century, when states began to enact Married Women's Property Acts to protect women's property rights. After that time, the number of premarital agreements created in the United States steadily increased.

Premarital agreements can cover a variety of topics. The most common include property and financial support rights during and...

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