When a couple decides to marry, they have many decisions to make. A key legal decision they must make is whether to have a prenuptial agreement. A prenuptial agreement is a contract made by the prospective spouses before the contemplated marriage. It is usually used to say how property will be divided in the event of divorce or death, but it can cover many other issues in the marriage as well. Prenuptial Agreements are most commonly used in second marriages when there are children from a prior marriage, or there is a significant disparity in the parties financial resources and pre-marital wealth.
There are several benefits to having a prenuptial agreement. Working out difficult issues in advance can help avoid problems and costly, time consuming and emotional litigation. Also, a prenuptial agreement can help protect an inheritance to a child from an earlier marriage. Finally, if a divorce does occur, the prenuptial agreement may avoid litigation for the parties since some key issues will already have been decided in the agreement.
There are also disadvantages to having a prenuptial agreement. One is the discomfort in addressing issues of divorce before the marriage. Another is that there's no guarantee a court will uphold the agreement. Also, even if an agreement is upheld, there's no assurance the entire agreement will be upheld. For example, provisions that address child custody or child support issues are not binding on a court, since the child's best interests are the deciding factors.
There are several grounds for invalidating premarital agreements. The main considerations are: One side was pressured into signing and felt that they have no bargaining power; the agreement was not "fair and reasonable" when made, or when it's to be enforced, it is so one-sided that it would be unfair to uphold it; or one of the parties hid important financial information from the other.
Prenuptial agreements are becoming more common due to the high number of divorces in our society and because more people are aware of the cost and emotional impact of litigation in Court. If people are considering a prenuptial or postnuptial agreement, they should seek legal advice. Laws are complex and greatly differ from State to State and each party should be fully aware of what he or she is signing before entering into a prenuptial or postnuptial agreement.
