Prenuptial Agreements in Alabama

An overview of prenuptial agreements in Alabama.

By , Attorney · Harvard Law School
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Engagement is an exciting time for couples, but it can also bring lots of questions about the future. Some engaged couples want to bring more certainty to their future financial situations in the unfortunate event of a divorce. These couples often enter into prenuptial agreements, writing into a contract their desires for issues like property division and alimony.

States have varying rules about what a prenuptial agreement must include in order to to be enforceable. This article will explain Alabama's definition of a prenuptial agreement, what it may include, and what makes the agreement enforceable.

What Is a Prenuptial Agreement?

A prenuptial agreement, also called an antenuptial agreement in Alabama, is a contract between two marrying individuals that lays out how the couple wants certain issues decided after the marriage. In that sense, it's a trade of the marriage itself for the terms of the agreement.

Who Should Get a Prenuptial Agreement?

There are a number of reasons that you may want a prenuptial agreement. Many believe that prenuptial agreements are only for the very wealthy, but any couple with assets, debt, potential business interests, or children from another relationship may find one of these agreements worthwhile.

Most commonly, a prenuptial agreement can ensure that a divorce won't end up costing you the assets and financial interests that you had prior to the marriage. It can also help protect an inheritance for children you had prior to your current marriage. You may have a previously-owned small business or other financial interests that will grow during the marriage; a prenuptial agreement can help protect these types of assets from division in the event of divorce.

What Issues Can a Prenuptial Agreement Cover?

Prenuptial agreements almost always cover what will happen to the couple's finances in the event of a divorce. They also often determine whether one spouse will pay the other alimony either during or after a divorce.

Each prenuptial agreement should lay out the assets and debts each spouse has immediately prior to the marriage. Since divorces can happen several years or decades after marriage, this helps avoid arguments about what each spouse owned or owed prior to the marriage.

Prenuptial agreements can also help decide how the couple will split up any income, property, debt, or other financial interests acquired during the marriage. For example, couples may decide that any credit card debt incurred during the marriage will be split 50/50, or in proportion to each spouse's income at the time of divorce. You might also agree that each spouse keeps his or her own retirement accounts; this can be written into a prenuptial agreement.

Can a Prenuptial Agreement Determine Child Custody and Child Support in Alabama?

In Alabama, you can't decide child custody or child support issues with a prenuptial agreement. Judges must determine child custody based on each child's best interest at the time the court makes the custody decision. Likewise, courts determine child support based on the child's present needs and the paying parent's ability to pay, at the time of the parent's separation. Spouses can't use a prenuptial contract to take away a court's power to make these decisions.

How Can I Ensure my Prenuptial Agreement Is Enforceable in Alabama?

Although most states have adopted the Uniform Prenuptial Agreement Act, which explains certain rules needed to make your prenuptial agreement enforceable, Alabama isn't one of those states.

In Alabama, all prenuptial agreements must be in writing and signed by the spouse who is giving up rights as part of the agreement, such as the right to alimony. The best practice, however, is for both spouses to sign the agreement.

Both spouses must disclose their assets and debts to each other. The best way to do this is for each spouse to attach a certified financial statement to the agreement. The certified financial statements should include each asset, debt, business interest, and financial account that each person owns. In Alabama, spouses don't have to give each other extremely detailed breakdowns of every asset or debt, but spouses need to provide at least the general picture of their financial situations.

The spouse who had an attorney prepare the agreement must allow the other spouse an opportunity to meet with an independent attorney. The attorney who drafts the agreement can't represent both spouses. It doesn't matter whether the other spouse takes advantage of the opportunity, but he or she must be at least given the chance to speak with an attorney.

When Will the Court Refuse to Enforce a Prenuptial Agreement?

When a married couple divorces, the spouse who wants to enforce the prenuptial agreement has to file a complaint to enforce the agreement with the court. The judge will then decide whether or not to enforce the agreement.

The spouse who wants to enforce the agreement must prove that either:

  • the other spouse viewed the agreement as fair, just, and equitable when he or she signed it, or
  • the other spouse entered into the agreement freely and voluntarily, with competent independent advice and full knowledge of the enforcing spouse's financial estate.

Since proving that the other spouse believed the agreement was fair when he or she signed it can be difficult, spouses seeking to enforce prenuptial agreements usually try to show the court that the other spouse entered the agreement voluntarily, and had the opportunity to consult with an attorney.

The fact that enforcing the prenuptial agreement will leave one spouse in a much better financial situation isn't a reason to throw out a prenuptial agreement. Courts have upheld prenuptial agreements that leave one spouse with more than 80 percent of the marital property.

Courts will invalidate a prenuptial agreement if one spouse coerced the other to sign it. Coercion is more than simply threatening not to get married, or trying persistently to convince the other spouse to sign the agreement. One spouse must threaten physical or psychological harm to the other for a judge to invalidate a prenuptial agreement based on coercion.

Alabama courts will also invalidate a prenuptial agreement for fraud. The judge won't let a spouse enforce a prenuptial agreement if that spouse lied to the other about his or her assets or debts before they signed the contract.

Judges also may throw out a prenuptial agreement if one spouse wasn't given the opportunity to speak with an independent attorney. Alabama courts have upheld prenuptial agreements where one spouse gave the agreement to the other spouse the day before the wedding – so long as the receiving spouse had a chance to speak with an attorney. If the spouse receiving the agreement chooses not to speak with an attorney, he or she can't use that as a reason to invalidate the prenuptial agreement later.

If you have additional questions about Alabama prenuptial agreements, contact a local family law attorney for advice.

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