A prenuptial agreement, also known as an ante-nuptial agreement, is a contract entered into before marriage where a couple specifies how they will divide their property, debts, income and expenses should the marriage dissolve.

What Are Some Common Features of a Prenuptial Agreement?

Prenuptial agreements often have some common clauses to ensure peace of mind for both parties:

  • Property Separation – To protect his or her own separate property.
  • Financial Separation – To protect himself or herself from the other spouse’s debt.
  • Alimony – To determine the level of support owed to a spouse both in divorce and death
  • Division of Responsibilities – To determine the responsibilities of each spouse after the vows are exchanged.
  • Child Inheritance – If one of the spouses were in a prior marriage, these terms will ensure that the children can keep a portion of the estate rather than go directly to the other spouse.
  • Forum selection – To determine which jurisdiction will govern any dispute which comes up before the wedding. Forum selection may also determine how the dispute is resolved; negotiation is preferable to a trial if the goal is to get to the aisle.
  • Choice of law clauses – To determine what laws will govern any dispute which comes up before the wedding. Forum selection clauses decide the location and form of dispute resolution while choice of law clauses determine the rules which the couple must follow. 
  • Sunset provisions – Since prenuptial agreements are contracts for pre-marriage agreements, it might be important for the agreement to state when the contract will end.

What Is Independent Legal Counsel?

Prenuptial agreements are often signed when one or both spouses already have substantial financial assets. If one spouse is wealthier than the other, the wealthy spouse could disadvantage the spouse who doesn’t have as much money pre-marriage. However, individuals cannot take advantage of their spouse post-marriage because each spouse has a duty to be honest with his or her partner.

To ensure that prenuptial agreements do not undermine the marital duty to be fair and honest, states often require both spouses retain independent legal counsel. To retain legal counsel means to hire a lawyer to look over the prenuptial agreement and advise the client about the potential consequences of signing it.

In order for the lawyers to be independent, the lawyers cannot have a conflict of interest. This rule will prevent one lawyer from representing both spouses because the spouses will conflict in the event of a divorce. As a result, independent legal counsel means both spouses must have a lawyer who can review the prenuptial agreement. Although one spouse can pay for the other spouse’s lawyer, the payee’s lawyer must represent and advocate the payee’s interests and not the paying spouse.

If both parties do not have lawyers advising them about the prenuptial agreement, the agreement may be voided by a court later on.

Are Prenuptial Agreements Enforceable?

Prenuptial agreements are generally enforceable. Although the laws regulating prenuptials vary from state to state, common rules are: 

  • Marriage
    • They are only enforceable if it is fair at the time of enforcement
    • Some states require certified copies of your marriage certificate
  • Divorce
    • You can have the judge handling your divorce make a formal order to restore you former name
    • No agreement can promote divorce
    • They must be in writing
    • They cannot include child support responsibilities
    • Attorney representation is usually required for both parties

What Can’t a Prenuptial Agreement Enforce?

Although a prenuptial agreement can help structure and settle any disputes which may arise before and after the wedding, contract law can’t be used for illegal purposes.

Prenuptial agreements can’t be used to evade the law. Prenuptial agreements cannot be used to restrict or end child support or child visitation rights. The spouse with child support or child custody must still pay support or allow his or her ex-spouse to visit the children.

The agreement also can’t be used to encourage divorce. This can happen when the agreement disproportionally gives one spouse too much property or alimony in the event of a divorce or break-up. Since the purpose of a contract is to facilitate a legal promise, a contract which encourages one party to the contract to break that promise cannot be enforced.

Finally, prenuptial agreements cannot be used to violate public laws. For example, prenuptials cannot be used to restrict the right of free exercise of religion. Although spouses are free to quarrel over which church, temple, or synagogue to attend, if any, spouses cannot use the courts to settle those disputes.

How Do I Terminate a Prenuptial Agreement?

Prenuptial agreements typically contain a sunset clause which causes the agreement to expire when a certain event occurs, such as the end of the wedding, the possession of the marriage certificate, the completion of the honeymoon or just by a certain date.

If you are looking to end a prenuptial agreement before a breakup, there are a few options. Prenuptial agreements are just contracts and like all contracts, are subject to certain rules:

  • Duress – both parties must voluntarily consent to the agreement. If a party is forced into the contract, the contract will not be valid.
  • Non-complete disclosure – both parties must give full disclosure as to their assets. Failure to do so will jeopardize the legality of the agreement.
  • The agreement is considered “unfair” to one party; the agreement strips one party of a significant amount of rights and assets

Does the Use of a Prenuptial Agreement Mean a Lack of Trust?

Prenuptial agreements are not a symbol of trust or lack thereof. If anything, prenuptial agreements are a symbol of clarity. The agreements provide open communication between the soon to be newlyweds, which is an excellent habit to cultivate no matter what phase of the relationship a couple is in. Prenuptial agreements, contrary to soup operas, strengthen relationships rather than destroy those relationships. Older couples also use them to ensure that their children have access to their respective estates.

Do I Need an Attorney to Draft a Prenuptial Agreement?

Although you and your spouse can reach an agreement by yourselves as to the general terms of the prenuptial agreement, in most situations two lawyers (representation for each spouse) are required by law in order to finalize the agreement. Speaking with the proper family attorney will help you understand your rights and protect your interests.