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Practice Definitions  | Prenuptial Agreement

Prenuptial Agreement

Prenuptial Agreement image
A Prenuptial Agreement ("prenup" for short) is a written contract created by two people before they are married. A prenup typically lists all of the property each person owns (as well as any debts) and specifies what each person's property rights will be after the marriage.

Who Needs a Prenup?

Contrary to popular opinion, prenups are not just for the rich. While prenups are often used to protect the assets of a wealthy fiancee, couples of more modest means are increasingly turning to them for their own purposes. For example, a marrying couple with children from prior marriages may use a prenup to spell out what will happen to their property when they die, so that they can pass on separate property to their children and still provide for each other, if necessary. Without a prenup, a surviving spouse might have the right to claim a large portion of the other spouse's property, leaving much less for the kids.

Couples with or without children, wealthy or not, may simply want to clarify their financial rights and responsibilities during marriage. Or they may want to avoid potential arguments if they ever divorce, by specifying in advance how their property will be divided and whether or not either spouse will receive alimony. (A few states won't allow a spouse to give up the right to alimony, however.) Prenups can also be used to protect spouses from each other's debts, and they may address a multitude of other issues as well.

If You Don't Make a Prenup

If you don't make a prenuptial agreement, your state's laws determine who owns the property that you acquire during your marriage, as well as what happens to that property at divorce or death. (Property acquired during your marriage is known as either marital or community property, depending on your state.) State law may even have a say in what happens to some of the property you owned before you were married.

Under the law, marriage is considered a contract between bride and groom, and with that contract comes certain automatic property rights for each spouse. For example, in the absence of a prenup stating otherwise, a spouse usually has the right to:

  • share ownership of property acquired during marriage, with the expectation that the property will be divided between the spouses in the event of a divorce or at death
  • incur debts during marriage that the other spouse may have to pay for, and
  • share in the management and control of any marital or community property, sometimes including the right to sell it or give it away.
If these laws -- called marital property, divorce, and probate laws -- aren't to your liking, it's time to think about a prenup, which in most cases lets you decide for yourselves how your property should be handled.

Making a Valid Prenup

As prenuptial agreements become more common, the law is becoming friendlier toward them. Traditionally, courts scrutinized prenups with a suspicious eye, because they almost always involved a waiver of legal and financial benefits by a less wealthy spouse and they were thought to encourage breakups.

As divorce and remarriage have become more prevalent, and with more equality between the sexes, courts and legislatures are increasingly willing to uphold premarital agreements. Today, every state permits them, although a prenup that is judged unfair or otherwise fails to meet state requirements will still be set aside. Because courts still look carefully at prenups, it is important that you negotiate and write up your agreement in a way that is clear, understandable, and legally sound. If you draft your own agreement, which we recommend, you'll want to have separate lawyers review it and at least briefly advise you about it -- otherwise a court is much more likely to question its validity.

Premarital Agreements Frequently Asked Questions

What is a premarital agreement?

A premarital agreement is a written contract created by two people planning to be married. The agreement typically lists all of the property each person owns, as well as their debts, and it specifies what each person's property rights will be after they tie the knot. Premarital agreements often specify how property will be divided -- and whether spousal support (alimony) will be paid -- in the event of a divorce. In addition, an agreement may set out the couple's intentions about distributing property after one of them dies. (This is especially useful for second marriages when one or both spouses wants to preserve property for children or grandchildren from a former union.)

In some states, a premarital agreement is known as an "antenuptial agreement," or in slightly more modern terms, as a "prenuptial agreement" or "prenup."

What is the difference between a living together agreement and a premarital agreement?

Couples who want to live together but have no intention of getting married may benefit from signing a living together agreement. It creates a framework for non-married couples to handle money and property issues while they live together and in case they separate.

If a couple makes a living together contract and later decides to marry, they should rewrite their contract as a premarital agreement. Premarital contracts are enforceable only if they are made when a couple is contemplating marriage.

Are premarital agreements legal?

As divorce and remarriage have become more prevalent, and with growing equality between the sexes, courts and legislatures are increasingly willing to uphold premarital agreements. Today, every state permits them, although a prenup that is judged unfair, that seems to promote divorce or that otherwise fails to meet state requirements will still be set aside. And courts won't uphold agreements of a non-monetary nature. For example, you can agree on how you will divide your property if you divorce, but you can't sue your spouse for failure to take out the garbage, even if your premarital agreement says that he or she must do so every Tuesday night.

Should my fiancee and I make a premarital agreement? Whether you should make a premarital agreement depends on your circumstances and on the two of you as individuals. Most premarital agreements are made by couples who want to circumvent the mandates of state law in the event of a divorce or at death. Often this happens when one partner has property that he or she wishes to keep if the marriage ends -- for example, a considerable income or a family business. Perhaps most frequently, premarital agreements are made by individuals who have children or grandchildren from prior marriages. The premarital agreement allows the partner to ensure that the bulk of his or her property passes to the children or grandchildren rather than to the current spouse.

Are there rules about what can or cannot be included in a premarital agreement?

A law called the Uniform Premarital Agreement Act provides legal guidelines for people who wish to make agreements before marriage regarding ownership, management and control of property; property disposition on separation, divorce and death; alimony; wills; and life insurance benefits.

States that haven't adopted the Act (or that have made some changes to it) have other laws, which often differ from the Act in only minor ways. A few states have taken the significant step of not allowing premarital agreements to modify or eliminate the right of a spouse to receive court-ordered alimony at divorce. Other states have their own quirky laws -- Maine, for example, voids all premarital agreements one and one half years after the parties to the contract become parents, unless the agreement is renewed in writing.

In every state, whether covered by the Act or not, couples are prohibited from making binding provisions about child support payments.

States That Have Adopted the Uniform Premarital Agreement Act:
  • Arizona
  • Arkansas
  • California
  • Colorado
  • Connecticut
  • Delaware
  • District of Columbia
  • Hawaii
  • Idaho
  • Illinois
  • Indiana
  • Iowa
  • Kansas
  • Maine
  • Montana
  • Nebraska
  • Nevada
  • New Jersey
  • New Mexico
  • North Carolina
  • North Dakota
  • Oregon
  • Rhode Island
  • South Dakota
  • Texas
  • Utah
  • Virginia
  • Wisconsin
Can my fiancee and I make our premarital agreement without a lawyer?

You and your fiancee can go a long way toward making your own agreement by evaluating your circumstances, agreeing on what you want your agreement to cover and even writing a draft of the contract. But if you want to end up with a clear and binding premarital agreement, you'll eventually have to enlist a good lawyer to help you. In fact, you will need two lawyers -- one for each of you. That may sound like surprising advice from advocates of self-help law. But it's true.

The laws governing marriage contracts vary widely from state to state. Unless you want to invest your time learning the ins and outs of your state's matrimonial laws, you'll want to find a lawyer who fully understands them. She can help you put together an agreement that meets state requirements and says what you want it to say.

This explains the desirability of having one lawyer, but why two? Premarital agreements can still be closely scrutinized by the courts. If you want your agreement to pass muster, having an independent lawyer advise each of you can be an important factor. While most courts don't require that each party to a premarital agreement have a lawyer, the absence of separate independent advice for each party is a red flag to courts.

Finally, on a practical note, having separate legal advisors can help you and your fiancee craft a balanced agreement that you both understand and that doesn't leave either of you feeling that you've been taken advantage of.
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