Prenuptial Agreements in Mississippi

An overview of prenuptial agreements in Mississippi.

By , Attorney

Learn the basics of prenuptial agreements in Mississippi.

A prenuptial agreement is usually one of the last things on the minds of a newly engaged couple. However, in a climate of increasing divorce rates, a prenup may be worth thinking about. Often, couples enter into prenuptial agreements certain that their marriage will last. However, these types of agreements can provide security and simplify a divorce if it does happen.

Couples thinking about a prenuptial agreement need to know the rules for prenups, which vary from state to state. This article provides an overview of prenuptial agreements in Mississippi and explains what makes them enforceable. If after reading this article you have questions, please contact a local family law attorney for advice.

What is a Prenuptial Agreement?

A prenuptial agreement is sometimes called an "antenuptial agreement". In Mississippi, a prenuptial agreement is a written contract between two potential spouses regarding property, asset and debt division in the event of divorce or death. A prenup must be signed and executed before the couple marries. Moreover, a couple must actually get married for a prenuptial agreement to take effect.

Who Needs a Prenuptial Agreement?

Prenups aren't only for celebrities and the very rich. Many couples enter into prenups not because they think they'll get divorced, but because they want to ensure a secure financial future. A prenuptial agreement allows individuals with significant assets to maintain their own separate property in a divorce. Furthermore, agreements outlining property and financial division in a divorce can greatly simplify divorce proceedings.

Different people want prenuptial agreements for different reasons such as protecting a child's inheritance or keeping a home. Additionally, a wealthy person may enter into a prenuptial agreement to shield his or her assets or for tax considerations. When a couple marries, property or money that was owned and earned separately can become part of the marital estate and subject to division if the couple divorces. For this reason, many couples may decide that a prenuptial agreement is good idea because it allows an individual to keep his or her money separate.

What Issues Will a Prenuptial Agreement Cover?

Prenuptial agreements can cover everything from how money should be spent during the marriage to how real estate and debts will be divided upon death or divorce. Couples who don't have a prenup will have their property divided according to the laws of their state. In other words, a prenuptial agreement gives couples the opportunity to reach their own decisions on who gets what.

Generally, a prenuptial agreement may resolve one or all of the following issues:

  • each spouse's right to property owned individually or as a couple
  • how assets are divided in the event of divorce or death
  • each spouse's right to sell, use or transfer property or money during the marriage
  • whether gifts and/or inheritances will be considered marital or separate property
  • whether either spouse will pay alimony to the other including how much and for how long
  • whether each spouse will receive death benefits from the other's insurance policy, and
  • any other matter the couple agrees upon.

Can a Prenuptial Agreement Resolve Child Custody and Child Support in Mississippi?

A prenuptial agreement covering child custody and child support won't be upheld.

Child support and custody can be agreed upon once the couple has separated or commenced a divorce action, but not before. A judge will make a final custody decision based on the child's best interests and custody needs at the time of the proceeding. Although the judge may follow the parents' custody agreement, a judge will never enforce a custody or support arrangement made before the parents have separated or before a child is born.

Will a Mississippi Court Enforce My Prenuptial Agreement?

Unlike many other states, Mississippi doesn't follow the Uniform Prenuptial Agreement Act (UPAA). Instead, Mississippi state law guides prenuptial agreements.

Basic contract rules apply to prenups, including the requirement that the agreement is in writing and that both spouses are of a legal age and mind to enter into the agreement. The prenuptial agreement may be held invalid if either spouse lacks the mental capacity to understand the agreement. Moreover, Mississippi courts have refused to uphold oral prenups. Finally, a couple must actually get married for their prenuptial agreement to take effect.

When Will a Court Refuse to Enforce My Prenuptial Agreement?

Most prenuptial agreements are enforced. Specifically, in one Mississippi case a divorcing couple was bound by their prenuptial agreement even though they asked the court to decide all the issues in their divorce. Nevertheless, a prenup may be thrown out if one of the following factors exists:

  • one spouse signed the agreement under duress
  • either spouse failed to disclose his or her assets or debts
  • either spouse signed away his or her right to alimony under the agreement
  • the agreement was extremely unfair (unconscionable) at the time it was signed and leads to an unfair result now
  • one spouse wasn't mentally competent or was under the influence of alcohol or drugs at the time the agreement was signed
  • the terms of the agreement are unclear
  • the agreement wasn't written, or
  • the agreement was made after the couple was married.

Furthermore, a court will not enforce a prenuptial agreement if a marriage is later voided because the spouses weren't of legal age or were closely related. Drafting and enforcing prenuptial agreements can be complicated, thus if you are considering signing a prenuptial agreement, contact a Mississippi family law attorney for advice.

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