Prenuptial Agreements in Alaska

Getting married is an emotional time for couples, filled with happiness and excitement for their future life together. For this reason, many couples don't want to think about the possibility of divorce, much less the messy details of dividing their property if the marriage ends. Still, with almost half of all new marriages ending in divorce, more and more couples are deciding to sign prenuptial agreements to protect their financial interests in case the marriage doesn't last.

States have varying rules regarding prenuptial agreements. This article will explain Alaska's definition of a prenuptial agreement, what it may include, and what makes the agreement enforceable.

What Is a Prenuptial Agreement?

Prenuptial agreements are contracts between marrying couples, where they write out how they want certain things to be decided in the event of a divorce, such as property division or alimony. It's essentially a trade of the terms of the agreement for the act of marriage.

Who Should Get a Prenuptial Agreement?

Years ago, many people thought prenuptial agreements were only for rich people. Today, couples of all income levels choose to bring some certainty to their financial future in case of divorce.

There are several reasons you may want a prenuptial agreement:

• to protect assets that you owned prior to marriage
• to protect the inheritance of children from a previous relationship
• to keep business interests from being divided in the event of a divorce, and
• to determine whether one spouse will pay the other alimony in the event of a divorce, and if so, how much.

What Issues Can a Prenuptial Agreement Cover?

Prenuptial agreements usually cover financial issues, such as how income is divided and spent during the marriage, but there are a wide variety of things a couple can determine in one of these agreements. Couples often decide that each spouse will keep any assets that they brought into the marriage. Couples may choose to allow one spouse to keep a certain business, home, or car, in the event of a divorce. Sometimes, spouses will choose to keep ownership over their own retirement accounts, bank accounts, credit card reward points, or even pets. Prenuptial agreements can also cover how the couple will divide any debt after a divorce.

Prenuptial agreements often cover the issue of alimony. When one spouse earns more than the other spouse, or when one spouse is responsible for most of the childcare duties, the couple may decide that the higher-earning spouse will pay the lower-earning spouse alimony if they divorce. The agreement can also determine the amount and duration of alimony. Other times, a prenuptial agreement states that neither spouse will pay the other alimony after divorce.

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

No. Alaska courts won't allow a prenuptial agreement to pre-determine child custody or child support. Judges decide child custody at the time of the parents' separation, based on the child's best interests at that time. Courts also decide child support when parents separate, based on each child's needs and the parents' ability to pay support. Parents can always agree on child custody and child support at the time of the divorce, subject to the court's approval.

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

Alaska is not one of the many states that has adopted the Uniform Prenuptial Agreement Act, a set of rules governing the enforceability of prenuptial agreements.

In Alaska, a prenuptial agreement must be in writing and signed voluntarily by both spouses in order to be enforceable. Each spouse must have signed the agreement voluntarily.

Prior to signing the prenup, both spouses should either disclose their assets and debts to each other or waive the right to receive that information, in writing. The best way to do this is for each spouse to prepare (or have an accountant prepare) a certified personal financial statement, and attach both statements to the agreement. While a certified financial statement isn't necessary for the agreement to be enforceable, it can help clear up any ambiguities and make it harder for a spouse who's later unhappy with the agreement to challenge its validity in court.

When Will the Court Refuse to Enforce a Prenuptial Agreement?

Alaska courts will refuse to enforce a prenuptial agreement whenever any of the following occurs:

• one spouse coerced the other spouse to sign the agreement, or
• the agreement was unconscionable when it was signed, and the spouse challenging the agreement:
  • wasn't provided with a full disclosure of the other spouse's assets and debts
  • didn't waive disclosure of the assets and debts, and
  • didn't have knowledge of the other spouse's assets and debts.

For a judge to invalidate, or throw out, a prenuptial agreement based on coercion, one spouse must have threatened the other spouse with physical or psychological harm. It's not coercion if one spouse is simply hesitant to sign the agreement but signs it anyway. Also, a threat to call off the marriage doesn't count as coercion either; it must be an actual threat of harm for the court to invalidate the agreement.

An agreement is unconscionable when the terms are so unfair that it'd be a miscarriage of justice for the judge to enforce the agreement. The agreement's terms must be extreme, not just uneven, to prove that a prenuptial agreement is unconscionable. For example, some Alaska courts have upheld agreements where one spouse is left with more than 80% of the couple's assets. An example of a situation where a judge may decide that a prenuptial agreement is unconscionable is if enforcement would require the lower-earning spouse to go on public assistance to survive.

Even if the prenuptial agreement is unconscionable, that doesn't mean the court will automatically throw it out. The court first looks at the disclosure of assets and debts. If the spouse challenging the unconscionable agreement didn't receive information about the other spouse's assets and debts, and had no other way of knowing that information, then the judge may decide that there wasn't a full and fair disclosure. Similarly, if the spouse challenging the unconscionable agreement didn't waive the right to receive the other spouse's financial information, and the other spouse didn't provide the financial information, or lied about the information, then the court may invalidate the agreement.

As you can see, once you sign a prenuptial agreement in Alaska, it's hard to have it thrown out later. Prenuptial agreements are complicated legal documents, and those unfamiliar with them often don't fully understand what rights they give up when they sign them. This is why it's extremely important to have an attorney review the agreement before signing it.

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