Premarital or prenuptial agreements allow the spouses to set out before marriage how issues of property division and support will be handled in the event of divorce.
A premarital agreement must be in writing and signed by both parties in order to be valid. Furthermore, it must be agreed to voluntarily after a full and fair disclosure of the assets and liabilities of both spouses. Each party must be represented by an attorney in the transaction or at least have the opportunity to have the agreement reviewed by independent legal counsel before signing.
A valid prenuptial/premarital agreement:
- Should be drafted and signed well in advance of the date of marriage
- Should include detailed descriptions of specific property assets and financial holdings and earnings derived from those holdings
- Be drafted and signed by both parties individually, each having their own legal counsel.
- Should include a termination date, when specific provisions no longer will be in effect
- Should never be drafted or signed under any duress or pressure by either party
- Should include detailed language specific to the parties’ interests
- and many other provisions as well …
A prenuptial/premarital agreement can help protect your:
- Investments, bank account
- Pension, 401k
- Professional practice
- Other personal property and financial assets
Premarital agreements, also called prenuptial or antenuptial agreements, are contracts between two people who intend to marry each other. These agreements usually address issues relating to the parties’ property and income during the marriage, after the marriage (if it ends in divorce) and after the death of one or both spouses. Premarital agreements can also address nonfinancial issues, such as the religious upbringing of the parties’ children. The issue of child support in the event of the parties’ divorce cannot, however, be resolved by a premarital agreement. Also, a court generally will not enforce insignificant nonfinancial details in a premarital agreement.
Couples who have been married previously tend to enter premarital agreements more often then couples entering their first marriage. They are also commonly used when one person brings significantly greater financial assets into the marriage.
Often, a premarital agreement is used as a vehicle by which the spouses can ensure that their children from a previous marriage receive a substantial portion of their assets upon their death or divorce.
A premarital agreement may be unenforceable or voidable if either party has withheld important financial information or coerced the other party into signing the agreement, or if the terms are so unjust that, if put into effect, one party would be left with very little. Before entering into the agreement, both parties must fully disclose their assets, income and liabilities to the other, and they must enter into the agreement in good faith. In order to ensure that a premarital agreement will be enforceable, it is advisable for both future spouses to be represented by separate counsel, who can advise them on their rights and responsibilities. In fact, some states’ laws require that each party be represented by a separate attorney in order for a premarital agreement to be valid.
State statutes on premarital agreements may vary slightly, although many states have adopted a version of the Uniform Pre-Marital Agreement Act. It is important when entering into a premarital agreement to make sure that the contract terms comply with the applicable statutes. A lawyer may help in that regard. If the agreement is in compliance, it will be enforceable and, if contested by one spouse, upheld by the court.
Courts will not uphold premarital agreements, however, if they violate public policy, such as by promoting divorce. If, for instance, an agreement provides that one spouse will receive better financial treatment after divorce than he or she does during the marriage, the court may determine that the agreement encourages divorce and disregards public policy favoring marriage. If that is the case, the court may refuse to enforce the agreement’s terms.
Premarital agreements differ from separation agreements. Separation agreements are entered into after marriage, and describe the conditions that apply to the parties’ separation. Whereas separation agreements are often entered into in contemplation of divorce, premarital agreements are entered into in contemplation of marriage. In addition, courts, in some situations, may enforce post-marital, or postnuptial, agreements, which are usually subject to many of the same requirements as premarital agreements.
Contact us for a free consultation about your pending marriage and prenuptial needs. We also handle post-marital agreements.