Prenuptial Agreements
| Author | Jeffrey Wilson |
| Pages | 835-838 |
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A prenuptial agreement is a contract between two persons who are planning to marry. Prenuptial agreements are often called premarital agreements, and, if entered into subsequent to the marriage, postmarital or antenuptial agreements. These types of contracts typically set forth the rights that each party has to the other's property. Couples can enter into prenuptial agreements prior to a first marriage or prior to a subsequent marriage after death or divorce of a prior spouse. Premarital agreements become operative in the event of divorce or the death of one spouse.
Prenuptial agreements can avoid uncertainty about how a judge would divide property and decide spousal support if the marriage ends in divorce. Either party may be seeking to avoid a major loss of assets, income, investments, or a business in the event of a divorce. People marrying for a second or third time often want to make their children the beneficiaries of all of their assets, rather than have the property pass to a second spouse and that spouse's offspring from a prior marriage. A valid prenuptial agreement will generally supersede whatever state law exists regarding probate or divorce issues.
In general, as with any contract, in order to be valid, a prenuptial agreement must be in writing and signed by the parties. In most states, the parties must fully disclose all income and assets to the other party. In a few states, it may be possible to waive a full disclosure of income and assets, but the spouse waiving that right must do so knowingly. If it is difficult to determine the exact validity of all of the assets, for example in a small family-owned business, the agreement should acknowledge some type of approximate value.
Additionally, the terms of the agreement must be reasonable. An agreement cannot be unusually harsh and unfair or the court will likely decline to uphold it. Blatantly unfair agreements are termed unconscionable agreements. Usually this means no reasonable person would enter into agreement with such terms. If a court finds an agreement to be unconscionable, the agreement will not be enforced.
Finally, both parties must have a fair opportunity to review the proposed agreement and to have inde-
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pendent legal counsel. While an agreement where both parties did not hire counsel is not necessarily invalid, hiring attorneys is another step that can demonstrate to the court that the agreement is fairly drafted and that both parties are making informed decisions. This is particularly true if two attorneys negotiate the agreement drafting and redrafting various provisions to the satisfaction of the parties.
Although each couple will have different circumstances, prenuptial agreements generally address a number of different aspects of the couple's agreement. These usually include the following:
The agreement should have an inventory, often attached as an exhibit to the agreement of each party's property, assets and debts which will be brought into the marriage.
The agreement should specify the...
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