Prenuptial Agreement Law
What is Prenuptial Agreement Law?
Prenuptial agreement law sets forth the rules couples must follow when agreeing beforehand how assets and financial responsibilities will be handled at the end of their marriage. People who intend to marry are free to enter into legal contracts regarding these matters. But due to the potentially harsh results of a prenuptial agreement for the spouse against whom it is enforced, the law imposes specific requirements about what can and cannot be agreed to as a matter of public policy.
Like other aspects of matrimonial law, the rules governing prenuptial agreements are the subject of state law. More than half of the states have adopted model legislation known as the Uniform Premarital Agreement Act (UPAA). Some of the legislatures in these states have modified the act to reflect their state’s goals and priorities, such as extending the act’s provisions to same-sex couples.
When deciding prenuptial agreement cases, judges have demonstrated a willingness to deviate from the terms an agreement to protect a disadvantaged party, at least more so than in other types of contract cases. This can come as a surprise to those with experience litigating contracts in the business world. Because of the risk that a prenuptial agreement will be held void for violating public policy, couples are strongly encouraged to consult an attorney for advice in this area of the law.
The Reason Prenuptial Agreements Exist
The purpose served by prenuptial agreements is one of the most misunderstood concepts in the entire legal system. Married and unmarried people alike often subscribe to the idea that these agreements come about as a result of distrust between future spouses, or that they are a means for wealthy individuals to protect themselves from potential spouses who are looking to marry for financial reasons only. Hence the notion that asking one’s fiancé to sign a prenuptial agreement is a romance-defeating gesture. All of this is incorrect.
To better understand the reason prenuptial agreements exist, consider that state legislatures are faced with the task of enacting divorce and inheritance laws that apply to every married couple living in the state. That is the way laws work – they are designed to apply to everyone. Unfortunately, not all couples have the same feelings about property rights, alimony, and other such issues.
Prenuptial agreements are nothing more than a way for couples to modify the laws of their state to bring them into accordance with the couple’s own views. Not everything about the law can be altered – future child support obligations cannot be done away with, for example. But generally, the one-size-fits-all divorce laws that would otherwise apply can be totally modified to suit the couple’s wishes. This can be especially useful to couples living in the handful of “community property” states who do not want to be subject to that system of property law.
Commonly Types of Agreements
Most people who enter into prenuptial agreements are interested in having their property treated a certain way in the event the marriage comes to an end. Agreements may state that certain items that belonged to one spouse before marriage will continue to belong to that spouse upon divorce, or pass to the spouse’s children at death. Many family homes and other heirlooms have been passed to the next generation in this manner. Prenuptial agreements can also include provisions regarding how assets accumulated during the marriage will be divided, and which of the spouses has the right to manage, control, encumber, or dispose of specific assets during the marriage.
Steps for Creating an Enforceable Contract
Drafting a prenuptial agreement must be done such that its validity cannot be successfully challenged in a subsequent divorce or other court proceeding. While this is true of any kind of contract, the emotional resentment that accompanies many divorces makes it all the more important in this context. The best way to avoid legal challenges is to make sure the terms of the agreement and the process of signing it are fair to both parties.
Specifically, the terms of the agreement must be conscionable. If one spouse stands to leave the marriage wealthy and the other spouse will become dependent on welfare, a judge will likely toss out the entire agreement. Prior to executing the document, each individual should have access to legal counsel (two lawyers must be hired), and there must be ample time to review the paperwork before the wedding. Most importantly, the two individuals must fully disclose the extent of their personal assets and income to one another.
Hiring a Prenuptial Agreement Lawyer
Even for couples who understand the benefits of a prenuptial agreement, discussing the topic can be awkward. If you and your future spouse are in need of assistance, an attorney specializing in matrimonial law can make the experience much more pleasant. Speak with a lawyer now to learn more.
Prenuptial Agreements and Estate Planning
Know Your Rights!
Articles on HG.org Related to Pre-nuptial Agreement Law
- Property Rights of Cohabiting CouplesGenerally speaking, unmarried couples do not have the same property rights as married couples. While a court may help divide a married couple’s belongings and make other decisions regarding their severance of the marital relationship, they are more hesitant to do so and may lack the authority to do so when cohabitating couples are concerned.
- Enforceability of California Prenuptial AgreementsMany individuals enter into prenuptial agreements in California as a precaution in case of divorce. Prenuptial agreements can help protect assets and income and protect spouses from default divorce rules. Although spouses will hope that they will not need to use their prenuptial agreement, it is there for them in case of divorce. Therefore, an effective strategy for creating a prenuptial agreement is to consider how the divorce should be handled.
- What Property Rights do Registered Domestic Partners Have?Several states have recognized registered domestic partners for many years, longer than same-sex marriages have been recognized in many jurisdictions. Although the Supreme Court’s decision in 2015 legalized same-sex marriage across the country, many registered domestic partnership laws remain intact.
- Do I Have a Right to a Family Business in Divorce?When contemplating divorce, spouses may think about the family home, real estate, financial accounts and maybe even retirement accounts. However, one important asset that should also be considered is whether a family business may be subject to marital distribution.
- How Is Equity Determined in a Divorce?In many situations, the family home is the most valuable asset in a divorce. It is common for spouses not to agree on how to treat this asset that they both may have been paying for during a number of years. However, determining the equity of a home is a vital component to reaching a final divorce settlement.
- Liability of Debts when Spouses No Longer Live TogetherIf two spouses are no longer living together, it can be difficult to determine who retains liability of the debt. Which spouse is responsible for the debt depends on a number of factors, namely the state laws where the spouses live and whether there are any agreements pertaining to debts accumulated during the marriage.
- Who Is Legally Responsible for Bills When Spouses Are Not Living Together?When spouses are not living together, it can be difficult to determine which spouse is legally responsible to pay debts. The timing of when the debt was incurred, the nature of the debt and state law are important considerations in this assessment.
- Where Goes the House in a Divorce?The home that the family lived in during the marriage is often the most valuable asset that a couple owns. Therefore, this asset may receive much attention during the divorce proceedings. What happens to a house after divorce depends on state laws, circumstances involving the house and the parties’ actions.
- How Is Spousal Support Determined?Like many issues involving family law, state law largely dictates spousal support matters. This includes whether or not to award spousal support and in what amount.
- Prenups And "Pre-Pups"Although couples do not enter a marriage with divorce in mind, a prenuptial agreement (prenups) can protect both parties and avoid a long, costly divorce process.
Pre-nuptial Agreement Law - US
- Prenuptial Agreements - Overview
Approximately 2.3 million people marry each year. Of those, over half will end in divorce. When national divorce statistics illustrate that the probability of a marital breakup is greater than 50/50, it should come as no surprise that the use of premarital (sometimes called either “prenuptial” or “antenuptial”) agreements is on the rise.
- Prenuptial Agreements - Wikipedia
A prenuptial agreement, antenuptial agreement, or premarital agreement, commonly abbreviated to prenup or prenupt, is a contract entered into prior to marriage, civil union or any other agreement prior to the main agreement by the people intending to marry or contract with each other. The content of a prenuptial agreement can vary widely, but commonly includes provisions for division of property and spousal support in the event of divorce or breakup of marriage. They may also include terms for the forfeiture of assets as a result of divorce on the grounds of adultery, further conditions of guardianship may be included as well.
- Uniform Marital Property Act
After three years of consideration, the Uniform Law Commissioners promulgated the Uniform Marital Property Act (UMPA) in 1983. For the first time, the family can be made into a functioning economic unit. And, for the first time, there is an opportunity to give more than lip service to the family as an economic entity.
- Uniform Premarital Agreement Act
The Uniform Premarital Agreement Act (UPAA) is a Uniform Act governing prenuptial agreements. It was drafted by the National Conference of Commissioners on Uniform State Laws in 1983. The UPAA has been adopted by 27 states (Arizona, Arkansas, California, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Maine, Montana, Nebraska, Nevada, New Mexico, North Carolina, North Dakota, Oregon, Rhode Island, South Dakota, Texas, Utah, Virginia, and Wisconsin)
Organizations Related to Pre-nuptial Agreement Law
If you are about to get married and are considering a prenuptial agreement, you will find a wealth of material here, all written by an attorney.
Publications Related to Pre-nuptial Agreement Law
- Bankrate.com - Prenuptial Agreements
A prenuptial accord is a contract between two people about to wed that spells out how assets will be distributed in the event of divorce or death. Such agreements have existed for thousands of years in some form or another, particularly in European and Far Eastern cultures, where royal families have always made provisions for protecting their wealth.
- Prenuptial Agreement FAQ - United States
A prenuptial agreement is a contract entered into by two people who are about to marry. A prenuptial agreement (often called a ‘prenup’ or ‘prenupt’) is used to specify how property and debts will be divided in the event of a breakup.
- Prenuptial Agreements in the United States - IAML Law Journal
Prenuptial agreements, sometimes also referred to as "antenuptial agreements" or "premarital agreements," are agreements between parties contemplating marriage that alter or confirm the legal rights and obligations that would otherwise arise under the laws governing marriages that end either through divorce or death. These agreements are fraught with controversy as to their appropriateness and their enforceability. Prenuptial agreements and the accompanying controversy are not unique to the United States. The purpose of this article is to give the non-American lawyer an overview of this rather complex area of American family law and estate planning, and also to highlight some of the common procedural and substantive requirements and issues currently in play in the United States today.