Prenuptial Agreements
• Main Divorce Page
A premarital agreement (sometimes called a "prenuptial" or "antenuptial" agreement) is a contract between two parties who are about to be married and who want to define their rights and obligations (usually involving property and spousal support) before they are married. If one party has a high-paying job, children from a prior marriage, or has already accumulated a lot of valuable property, a premarital agreement can save money, time, and trouble later on if things don't work out.
Should I have a premarital agreement?
It is not legally required, and most people do not have premarital (prenuptial) agreements.
All states have laws that define the rights and obligations of couples who have entered into marriage but who have not signed any agreement. For the most part, you need a premarital agreement only if you want to change the rules that would otherwise apply to you and your spouse. Its a good idea to consult with a family law attorney in your area.
Am I bound by the prenuptial agreement if I change my mind later?
In all likelihood, yes, you will be bound by a pre nuptial agreement. A prenuptial agreement is an enforceable contract. Unless there is some very good reason for a judge to let you reject or modify the deal that you made, you are likely to be bound by it even if you later decide that it was a bad deal.
If, however, your circumstances change dramatically in a way that could not have reasonably been anticipated - such as a serious illness - the judge might require your spouse to help you despite the premarital agreement. That will depend upon the law of your state and on how drastic the change of circumstances is and how unlikely it was that your situation would change. For example, it is much less likely that unexpected health problems would arise in a 30 year-old than in a 78 year-old. For more information, consult with a family law attorney in your area.
Can we write the premarital agreement ourselves, without a family law attorney?
Legally, you can write the prenuptial agreement yourself, but this is not a good idea. An attorney is in the best position to advise you as to the advantages and pitfalls of certain provisions, how they can best be drafted to take into account your particular needs - and whether a premarital agreement is even good for your situation. Consult with a family law attorney in your area.
Do we both need attorneys for a prenuptial agreement?
It is strongly recommended that each party have his or her own lawyer review the agreement, for at least two reasons.
One of the factors that a courts looks at when enforcing a prenuptial agreement is whether both parties had independent legal representation. The chances that a court will enforce a prenuptial agreement are increased significantly if each person had his or her own attorney review it. An attorney will make sure that you understand the ramifications of your premarital agreement, what your rights are, and what sortt of provisions may not be enforceable.
What should be included in a prenuptial agreement?
In order to best safeguard your union, there are certain key issues you should include in your agreement.
1. List all assets, liabilities, income, and expectations of gifts and inheritances.
2. Describe how premarital debts will be paid.
3. Resolve what happens to your premarital property in reference to appreciation, gains, income, rentals, dividends and proceeds of such property- in the event of death or divorce.
4. Decide who, or if both of you, will own the marital residence and secondary homes in the event of death or divorce.
5. Specify the status of gifts, inheritances, and trusts either spouse receives or benefits from, whether before or after marriage.
6. Clarify what will happen to each type of property, whether jointly or individually owned, such as real estate, artwork and jewelry.
7. Figure out alimony, maintenance, or spousal support, or provide for a waiver or property settlement instead of support (to the extent allowable by law).
8. Detail death benefits, stating what you will provide for in your will.
9. Decide on medical, disability, life or long-term-care insurance coverage.
It's a wise, but difficult decision.
More than half of all marriages in the United States end in divorce and only five percent of married couples have prenuptial agreements. Some people may be hesitant to enter a prenuptial agreement with their beloved, because they believe it destroys the romance and fantasy of their upcoming marriage.
A prenuptial agreement, however, can be seen as an additional opportunity for the couple to share their hopes and dreams with one another and articulate their aspirations.
The couple improves their chance of living up to each other's expectations when they know what they are in advance and share with each other all the values that each holds dear.
Top of Page
"Statement of Client's
Rights and Responsibililties"
in matrimonial actions
Equitable distribution case law summaries
Equitable distribution,
maintenance and child support
Divorces complicated by bankruptcy
Wise and difficult decision . . . continued
A prenuptial agreement can intensify the pleasure of a relationship by drawing out the couple's desires, promoting communication and enabling partners to establish for themselves the rules of their marriage. By virtue of this process, a prenuptial protects the romance that launched the couple and makes happily-ever-after more likely. A relationship based on reality is stronger than a relationship built on illusion.
If the idea of bringing it seems uncomfortable…you are not alone. Many people carry preconceived notions prenuptial agreements. also However, more and more couples are proposing these agreements to stimulate important conversations about how they define and safeguard their marital union (lifestyle, roles, financial responsibility).
Why should I bring it up?
Bringing up the subject of a prenuptial agreement can be a great way to learn more about your expectations, dreams and hopes. By starting down this communication path now, you are well on your way to creating a mutually fulfilling partnership. Whether you have high assets or are just starting out, have children or don't, there are dozens of reasons a prenup is beneficial to you and your spouse. Here are just a few:
To determine how you and your spouse define equality in your partnership
To establish the value of non-monetary contributions to a marriage, such as being a stay at home spouse and career sacrifices
To cover your pre-marriage nest egg (such as your home, pension plan, stock portfolio, or property with emotional value)
To protect gifts and inheritances you receive
To ensure that in the event of death or divorce, you will avoid difficult disputes over property (such as family businesses, stock options, professional degrees, licenses and practices, pension plans, and copyrights)
To ensure that children from a prior marriage receive their intended inheritance
Is it the right time?
Presenting an agreement across the dinner table a week before the wedding is not the appropriate time to bring up this important conversation! Conversations about concerns, expectations, and responsibilities are best had early in the relationship. As your relationship gets more serious, your conversations should get more detailed and specific.
Is it the right place?
Where do you normally discuss topics important to your partnership, such as life goals, finances or family? Find or create a calm, neutral spot where you will both feel open, at ease and unpressured. Whether it's your living room sofa, an afternoon walk or a quiet dinner, you'll want to create an environment where both of you are most comfortable- mentally and physically.
Open, Honest Communication
Even when couples understand the reasons for these marriage contracts, many aren't sure just how to initiate the discussion. Take a look at these suggestions to get you started on the "HOW".
Openly, honestly, directly
State your specific concerns
Present an idea to be implemented by the two of you over time
Invite discussion about any underlying issues that arise
Work out your issues collaboratively
What guidelines do the courts use?
While the standards for enforcing prenuptial agreements vary from state to state, in almost all states, five conditions are imposed:
1. Each party must make complete disclosure to the other of his or her assets, liabilities, sources of income, and any other facts likely to affect his or her financial position.
2. Each party should be represented by separate and independent legal counsel or a court may decide not to recognize the agreement.
3. The terms of the agreement must be generally fair at the time the agreement is entered into. This standard will depend on the circumstances of individual cases.
4. Provisions regarding child support will be frowned upon.
5. The agreement may be set aside by the courts if enforcement of the agreement would impoverish either party and thereby create a risk that either party or their minor children would require public assistance.