What is a prenuptial (or antenuptial) agreement?

A prenuptial agreement, also called an antenuptial agreement, is a contract between prospective spouses settling alimony and/or property rights of the parties in the case of divorce. A prenuptial agreement may also include provisions concerning the distribution of a decedent spouse’s property.

What are the requirements of a prenuptial agreement?

(1) A prenuptial agreement must be in writing. No action can be brought on an agreement made in consideration of marriage unless the agreement, or some memorandum or note of it, is in writing and signed by the person to be charged.

(2) It must be “supported by consideration,” which means something of value must be exchanged. But marriage itself is sufficient consideration.

(3) It must be fair and reasonable. Fairness and reasonableness are judged as of the time the agreement is made, not on conditions occurring subsequently.

(4) There must be full and truthful disclosure, or actual knowledge of one another’s assets and debts, income, and expenses.

(5) The agreement must be entered freely and voluntarily. There can be no fraud or duress.

(6) Each party must have independent legal advice, or at least a real opportunity to get independent legal advice.