Prenuptial Agreements in Delaware

Several decades ago, many states outlawed prenuptial agreements, believing that they made divorce more likely and were a negative influence on marriages. Today, however, states know that having a prenuptial agreement doesn't make a couple any more likely to divorce, and can actually help couples bring more certainty to their financial future. All 50 states now allow prenuptial agreements.

States have varying rules regarding prenuptial agreements. This article will explain Delaware'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 a "premarital agreement" in Delaware, is an agreement between prospective spouses that they sign prior to marriage, which is effective only upon marriage. In a prenuptial agreement, two individuals contract to trade the act of marriage for financial terms regarding issues like property division and alimony.

Who Should Get a Prenuptial Agreement?

There are many reasons a marrying couple may want a prenuptial agreement. Once thought of as a protective tool for only the very wealthy, today couples of all income levels see the benefit of planning for the possibility of divorce prior to marriage, when the negotiation will be a much less contentious one.

Couples often get prenuptial agreements when:

• one of both of them have premarital assets (property they owned prior to marriage) that they don't want divided in a divorce
• one or both have children from a previous marriage and want to protect their inheritances
• they want to avoid dividing business interests they've owned prior to marriage
• they want to decide how their joint assets will be divided in a divorce, or
• they want to determine whether one will pay the other alimony if the marriage ends.

What Issues Can a Prenuptial Agreement Cover?

Prenuptial agreements can cover any issues not prohibited by state law, including a wide range of financial issues that most couples tend to include in their agreements, such as the following:

• each spouse's rights in any of the property either of them owns, no matter where it's located
• each spouse's rights to buy, sell, use or otherwise manage their property
• how property will be divided in the event of death, divorce, or any other event
• whether one spouse will provide the other with spousal support if they divorce, or some other event occurs
• whether the spouses will be required to create wills to carry out the terms of the agreement
• what happens to the death benefit from either spouse's life insurance policy, or
• which state's law will be used to interpret their prenuptial agreement.

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

In Delaware, a prenuptial agreement can't affect child support or child custody; judges must decide each of these issues at the time the couple separates or divorces. Courts determine child custody based on what's in each child's best interest at the time of their parents' separation. Judges decide child support based on each parent's current income and ability to pay, and the child's needs, at the time parents separate or 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 Delaware?

Delaware is one of many states that has passed the Uniform Prenuptial Agreement Act (UPAA), which is a multi-state set of rules that governs the enforceability of prenuptial agreements.

The UPAA states that couples' prenuptial agreements must be in writing to be enforceable. Each spouse must sign the agreement, and it takes effect upon the couple's marriage.

A Delaware prenuptial agreement won't be enforceable if:

• the spouse challenging the agreement ("challenging spouse") didn't sign the agreement voluntarily, or
• the agreement was unconscionable ("illegally unfair") when it was signed, and the challenging spouse:
  • wasn't given a fair and reasonable disclosure of the other spouse's assets and debt,
  • didn't waive in writing the right to receive a fair disclosure of the other spouse's finances, and
  • had no other way of knowing the other spouse's financial situation.

A judge determines whether the challenging spouse didn't sign the prenuptial agreement voluntarily. Just because one person refuses to marry the other unless he or she signs the agreement doesn't mean it was signed involuntarily. For a court to find that the challenging spouse didn't sign the agreement voluntarily, the other spouse must have threatened some physical or psychological harm to the challenging spouse.

Courts also determine whether an agreement is unconscionable on a case-by-case basis. Unconscionability is a very high bar to reach; even agreements that yield a huge disparity in wealth after the divorce are usually enforceable. An example of when a judge might deem an agreement unconscionable is if the challenging spouse is in such bad financial shape after the divorce that he or she has to receive public financial assistance (like welfare) to make ends meet.

A court will find that a spouse has given the other a fair and reasonable financial disclosure if the disclosure includes accurate descriptions and estimates of his or her property values and debt. If the spouses have general knowledge about each other's finances, but don't trade any documents, the prenuptial agreement can still be enforceable. If you want to ensure your agreement's enforceability, however, the best thing to do is prepare certified personal financial statements and attach them to the agreement.

In the case of a void marriage, the court will only enforce the agreement to the extent necessary to avoid an unfair result.

A couple can amend or revoke their prenuptial agreement by putting their intentions in writing and signing it.

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