Prior to 1990, Kentucky did not allow couples to create prenuptial agreements; the state believed these contracts could promote divorce. In 1990, however, the Kentucky Supreme Court joined several other states in allowing prenuptial agreements to let spouses to determine their own financial rights upon divorce or death, as long as the agreements met certain standards. Today, many couples choose to sign prenuptial agreements prior to getting married.
If you are wondering whether a prenuptial agreement would be right for your situation, you should know how they work in your state. This article explains what a Kentucky prenuptial agreement can cover and how to ensure your prenuptial agreement will be enforceable if you divorce.
A prenuptial agreement, also referred to as a premarital agreement or antenuptial agreement in Kentucky, is a contract between prospective spouses, signed prior to marriage, that determines how the couple’s assets and debts will divided upon divorce or death of a spouse. Premarital agreements become valid only after the couple is legally married.
While prenuptial agreements were once thought of as protections needed by only the very wealthy, many couples now choose to make these agreements, regardless of how much they own or earn, to give themselves certainty about their financial situation if their marriage ends. Well-drafted prenuptial agreements have been found to actually promote marital happiness, by giving both spouses security in their future financial life and allowing the couple to focus on other aspects of their relationship.
Some may want to have a prenuptial agreement to protect a business, property, or other assets owned prior to marriage, particularly assets that have been a part of their family. Also, people who have children from previous relationships often enter into prenuptial agreements to protect the children's right to inherit the property their parent brings to the new relationship. Other couples may want to ensure that both spouses will be entitled to a share of property gained during the marriage, particularly if one spouse plans to take care of the household and/or children while the other spouse works.
In Kentucky, prenuptial agreements may cover a number of different issues, including:
Kentucky law doesn’t allow prenuptial agreements to determine issues of child custody or child support.
Although child support is typically paid by one parent to the other parent, the right to receive financial support belongs to the child. A parent can’t bargain away the child’s right to financial support as part of an agreement with the other parent.
Kentucky courts have the power to approve any child custody agreement between parents. Kentucky courts base that approval on what is in the child’s best interests at the time custody is determined. Therefore, an agreement on child custody prior to a couple getting married will be invalid.
In Kentucky, a prenuptial agreement must be in writing and voluntarily signed by both spouses. Courts won’t enforce oral promises made by one spouse to the other if they are not part of the written agreement.
The agreement can’t be tainted by fraud, duress, or mistake. Each spouse must fully and honestly disclose his or her assets to the other spouse at the time the agreement is signed. Both spouses should take care to make sure that all their assets and debts are listed correctly in the agreement.
If a couple wants to change their agreement after they are married, they can do so by signing an additional agreement, called a postnuptial agreement. All of the same rules apply to a postnuptial agreement as to a prenuptial agreement; the only difference is that it is signed after the couple is legally married.
A couple can also revoke a prenuptial agreement altogether by putting their desire to cancel the prenuptial agreement in writing and signing it.
Kentucky law provides certain rules to protect prospective spouses from being taken advantage of by a prenuptial agreement. If these requirements aren’t met, the judge may throw out the agreement.
Similar to most contracts, the court will invalidate (throw out) the agreement if either spouse was under duress when it was signed. For example, the court will invalidate any agreement if one spouse physically forced the other to sign the agreement, or threatened the other with some harm that left that spouse no choice but to sign the agreement.
Courts will also consider whether a spouse was allowed time to speak with an attorney or family members between the time the spouse was given the agreement and the wedding. On the other hand, a threat to simply not get married unless the other person signs the prenuptial agreement doesn’t constitute duress, and won’t be a reason for a court to invalidate an otherwise valid agreement.
Each spouse must be mentally competent to sign the agreement. A court will invalidate the prenuptial agreement if either spouse was suffering from a mental illness, mental deficiency, or intoxication that kept him or her from understanding the agreement when it was signed.
Courts will also invalidate an agreement for fraud. If a spouse lies about his or her financial status to the other spouse, or otherwise commits fraud to convince the other spouse to sign the agreement, a judge will throw it out.
Finally, the agreement must not be “unconscionable,” which means that the agreement is so unfair that it would be unjust for the court to enforce it. Kentucky requires that the agreement not be unconscionable at the time it was signed, and also at the time the spouses divorce, for it to be enforceable. Just because an agreement gives most of the assets or property to one spouse doesn’t necessarily mean a judge will find it unconscionable.
If you are considering signing a prenuptial agreement, you should consult a Kentucky family law attorney for advice.