Prenuptial Agreements in Missouri

What makes a prenuptial agreement enforceable in Missouri?

When you’re getting married, you probably aren't thinking about what will happen if your marriage ends. However, statistics tell us that many marriages end in divorce. That's why it makes sense to consider what might happen if you and your future spouse end your marriage and whether or not you should consider signing a prenuptial agreement before saying “I do.”

This article discusses prenuptial agreements in Missouri. If you have questions after reading this article or decide that you want a prenuptial agreement, you should contact a Missouri family law attorney.

What Is a Prenuptial Agreement?

A prenuptial agreement, also called an antenuptial or premarital agreement, is a contract, entered into before marriage, setting out the rights of each spouse in the event of divorce or death. The major benefit of a prenuptial agreement is that it avoids litigation later, because you and your spouse have already agreed on how to divide your property if your marriage ends. Without a prenuptial agreement, Missouri divorce laws will determine how your property is divided, which can result in a long court battle.

Who Should Get a Prenuptial Agreement?

Prenuptial agreements are common among:

  • people with children from a prior marriage who want to protect their children’s interests
  • people who have been through a messy divorce previously and want to make sure it doesn’t happen again, and
  • people with significant assets.

However, even if you don’t belong to one of these groups, a prenuptial agreement might still be right for you if you want to decide for yourself what happens to your property. If you don't create a prenuptial agreement, state law will determine how your property is divided, rather than you and your partner making these decisions.

What Issues Can a Missouri Prenuptial Agreement Cover?

In general, prenuptial agreements can cover any issues relating to property, assets, and debts belonging to you or your future spouse.

For example, your premarital agreement may cover some of the following issues:

  • how premarital assets will or will not be combined or divided
  • how to pay premarital debts
  • how the marital home and marital property is divided
  • whether gifts, trusts and/or inheritances will be considered marital or separate property
  • whether either spouse will receive alimony (also called “maintenance”) in the event of divorce
  • how death benefits and/or life insurance will be divided, and
  • how matters such as medical care, disability insurance, and long-term medical care will be dealt with.

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

Future child custody and child support arrangements can’t be determined in a prenuptial agreement in Missouri, as a matter of public policy. These decisions must be based on the best interests of the child, at the time of divorce. For more information about child custody in Missouri, read Child Custody in Missouri: The Best Interests of the Child. For more information about how child support is determined in Missouri, read Child Support Laws in Missouri.

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

Unlike many states, Missouri has not adopted the Uniform Prenuptial Agreement Act (UPAA). Rather, the enforceability of prenuptial agreements in Missouri is guided by statutes and case law. As a general matter, a prenuptial agreement must be in writing and signed by both you and your future spouse to be enforceable.

Under Missouri court cases, a prenuptial agreement must meet two main requirements to be enforceable. First, you and your future spouse must enter into the agreement “freely, fairly, willingly, understandingly, in good faith, and with full disclosure.” Second, the agreement must be “conscionable.”

The first requirement relates to the circumstances surrounding the signing of the agreement. To be valid, the following circumstances should exist when you sign the agreement:

  • you and your future spouse should have access to your own lawyers
  • there should be enough time between the presentation of the agreement and the wedding date to allow for you and your future spouse to discuss and revise the agreement
  • you and your future spouse should fully disclose all assets and their values to each other (Mo. Rev. Stat. § 474.120)
  • you and your future spouse should be fully informed of your legal rights (Mo. Rev. Stat. § 474.220), and
  • you and your future spouse should be of relatively equal bargaining positions (that is, relatively equal in age, sophistication, education, employment, and experience).

The requirement that the agreement is “conscionable” deals with the equality of the actual terms of the agreement. For a prenuptial agreement to be conscionable, the terms must be fair. A prenuptial agreement would be unfair or “unconscionable” if it left one party with everything and the other party with nothing, for example.

There are a few things you can do to make your prenuptial agreement more likely to be enforced. First, you and your future spouse should use separate lawyers. This shows that both of you signed the agreement voluntarily, understood what you were signing, and knew your rights at the time. Second, it’s best to sign the agreement well before the wedding date. This serves as evidence that neither party was pressured to sign by the fast-approaching “big day.” Third, both you and your future spouse should fully disclose the kind and value of all assets and debts you each have (for example, a bank account of $10,000 and real estate worth $50,000). Failing to fully disclose assets has often resulted in prenuptial agreements being found unenforceable by courts.

Because prenuptial agreements are complicated and impact your future rights as a spouse, you should always consult a Missouri family law attorney before signing one.

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