Prenuptial Agreements in Arkansas

An overview of prenuptial agreements in Arkansas.

By , Attorney · Harvard Law School

Prenuptial agreements have long had the reputation of being unromantic, but in today's age of frequent divorce, many couples see it as a practical step on the road to marriage. Every state now allows prenuptial agreements, and it's been proven that they don't make divorce more likely, but rather allow marrying couples to bring more certainty to their financial futures.

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

What Is a Prenuptial Agreement?

A prenuptial agreement is a contract between two people who plan to marry. In a prenup, couples typically spell out how certain financial issues will be decided if they divorce, such as property division and alimony. The contract is essentially a trade of certain financial agreements for the act of marriage itself.

Who Should Get a Prenuptial Agreement?

In the past, typically only wealthy individuals with considerable assets to protect would sign prenuptial agreements before marriage. Today, couples of varying income levels use prenups for various reasons.

You may be interested in getting a prenuptial agreement if:

  • you want to protect your pre-marital assets (property you owned before marriage) in the event of divorce
  • you have children from a previous relationship and want to protect their inheritance
  • you have pre-marital business interests
  • you want to decide ahead of time how your property will be divided in the event of a divorce, or
  • you want to determine whether you or your spouse will pay alimony if you divorce.

What Issues Can a Prenuptial Agreement Cover?

Prenuptial agreements most often cover issues of property division, debt division, and alimony.

Many couples want to decide for themselves ahead of time how their property, both property owned prior to marriage and assets acquired during the marriage, will be divided if they divorce. A prenuptial agreement can help minimize fighting over property in the unfortunate event of a divorce.

Couples may also agree that each spouse will keep any assets they brought into the marriage. One spouse may have assets or business interests that have been in his or her family prior to the marriage and wants to keep them out of a messy divorce proceeding. Couples may agree that if they divorce, each spouse will keep their own bank accounts, retirement accounts, and credit card debt. The agreement may cover what happens to a life insurance policy as well. Prenuptial agreements can cover all of these issues, as well as require a spouse to make a will to carry out the terms of the agreement.

In addition, many couples want to pre-determine whether one spouse will pay the other alimony in the event of divorce. When a couple marries, one spouse may agree to put his or her career on hold to take care of children or a household, and the couple may agree that the working spouse will pay the non-working spouse alimony if they divorce. On the other hand, many working spouses will agree that neither spouse will pay the other alimony if the marriage ends.

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

No. In Arkansas, a prenuptial agreement can't determine child custody or child support. Arkansas courts always decide child custody at the time of divorce, when the judge can properly assess what custody arrangement is in the child's best interests. Similarly, courts need to determine child support based on the child's needs and the parents' respective financial situations at the time of divorce. If parents want to agree on child custody or child support, they can do so at the time of the divorce, subject to the court's approval.

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

Arkansas is one of many states that have adopted the Uniform Prenuptial Agreement Act ("UPAA"), which is a set of rules stating what a prenuptial agreement needs to be enforceable.

To be enforceable under the UPAA and in the state of Arkansas, a prenuptial agreement must be in writing. Both spouses should sign the agreement. The agreement becomes enforceable only after the couple marries.

Arkansas courts won't enforce a prenuptial agreement whenever any of the following factors are present:

  • one spouse didn't sign the agreement voluntarily
  • the agreement was "unconscionable" (severely unfair) when it was signed, and before signing:
    • a spouse wasn't truthful about their assets or debts
    • the defrauded spouse didn't waive the right for disclosure of the other spouse's assets or debts, and
    • the defrauded spouse couldn't have otherwise known about the other spouse's assets or debts.
    • if a spouse would have to receive public assistance because of the lack of alimony in an agreement, a court can override the agreement and force the other spouse to pay alimony.

Courts decide on a case-by-case basis whether an agreement is unconscionable. Judges find prenuptial agreements unconscionable only in rare cases. Even if an agreement seems very one-sided, the court will usually enforce the terms the spouses agreed to when they married. A judge may find an agreement unconscionable only if one spouse is left so destitute that they have to receive public assistance, such as welfare or food stamps, to survive.

Arkansas law doesn't require that spouses have the opportunity to consult with an attorney prior to signing the prenup, but judges may take that into account when deciding whether the agreement is unconscionable.

If a court annuls a marriage, a judge usually won't enforce the prenuptial agreement. A judge may enforce the agreement only to the extent necessary so it doesn't yield an unfair result.

A prenuptial agreement can only be amended or revoked by a written document signed by both spouses.

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

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