Prenuptial Agreements in Nebraska

Historically, prenuptial agreements have had a bad rap. Some viewed these types of agreements as a way for a greedy spouse to keep his or her money hidden and out of reach. Nevertheless, prenuptial agreements and their reputations have evolved. Premarital agreements are now more common than ever. For many couples today, prenuptial agreements offer financial security rather than secrets.

But not all agreements are created equal. There are certain requirements for prenuptial agreements in each state. Thus, it's important to know what's required before you enter into one. This article provides an overview of prenuptial agreements in Nebraska, including what makes an agreement 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, also called a "prenup" or "premarital agreement," is an agreement between two future spouses made in contemplation of marriage. Premarital agreements govern some of the most common divorce-related issues, such as spousal support and property division. A prenup is more than a verbal agreement. To be enforceable, a prenuptial contract must be in writing and signed by both spouses before marriage. An agreement won't take effect until a couple actually marries.

Who Should Get a Prenuptial Agreement?

An individual who has been through a messy divorce may want a prenup to avoid a similar situation. Similarly, a very wealthy individual may use a prenuptial agreement to keep his or her money separate or to preserve a child's inheritance. Prenuptial agreements simplify divorce proceedings and give spouses financial security even if things don't work out.

Prenuptial agreements aren't for couples that think they will be getting a divorce down the road. Instead, prenuptial agreements are for dedicated couples that want to define finances during marriage and have a plan in case a marriage ends in death or divorce. Because divorces are on the rise, so is the use of prenuptial agreements.

When a couple says their wedding vows, separate property can become marital property jointly owned by both spouses. Nevertheless, a prenuptial agreement allows spouses to control their financial future. An agreement can define each spouse's right to his or her separate property and can prevent arguments down the road.

What Does a Prenuptial Agreement Cover?

Prenuptial agreements can take the place of a divorce trial. Most issues that would be decided in a divorce by a judge can be decided in a prenuptial agreement before the spouses even marry. Typically, a prenup will resolve one or more of the following:

• each spouse's rights in separate or marital property
• each spouse's right to buy, sell, transfer, mortgage or otherwise manage or control property during the marriage
• the division of assets and liabilities upon separation, death or divorce
• whether either spouse is entitled to spousal support, including how much and for how long
• each spouse's rights to death benefits from the other's life insurance policy
• the making of a will in support of the agreement
• the state law governing the agreement, and
• any other issue the couple agrees upon.

Nebraska courts have refused to uphold provisions in prenuptial contracts which prevent a spouse from prosecuting domestic violence or which force one spouse to assume the other's premarital debts. Nevertheless, agreements that exclude one spouse from inheriting upon the other's death are almost always enforced.

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

Premarital contracts can never eliminate a child's right to support or decide custody schedules. A judge will make the final decision on custody by evaluating a child's best interests. A child's needs and best interests are reviewed at the time of a custody proceeding, but not before.

Moreover, although parents can resolve many financial questions in a prenuptial agreement, they can't resolve child support. Support belongs to the child and is not the parents' right to contract away. Like custody, child support is evaluated based upon the child's needs and the parents' income at the time of separation or divorce. Any parental attempts to resolve child support in a prenup will be viewed as infringing on a child's rights.

Will a Nebraska Court Enforce My Prenuptial Agreement?

Nebraska, like many other states, has adopted the Uniform Prenuptial Agreement Act (UPAA), which sets rules for prenuptial agreements.

Basic contract rules apply to prenuptial agreements in Nebraska. Specifically, any agreement must be signed by the future spouses and put in writing. A couple must reach an agreement before marriage. However, prenuptial agreements can be amended down the road as long as any amendments are written and signed the spouses. Nevertheless, if a couple never marries, their premarital agreement isn't enforceable.

A prenuptial agreement will likely be upheld if the following factors are present:

• each spouse signed the agreement voluntarily
• the agreement is reasonably fair at the time it was signed
• each spouse fully disclosed his or her assets and debts
• each spouse has reasonable knowledge or could have obtained reasonable knowledge of the other's financial situation, and
• the terms of the agreement don't promote divorce.

Prenuptial agreements must be voluntarily signed and reasonably fair. For example, in one Nebraska case the court determined that a spouse had not signed the agreement voluntarily because she was given it just hours before her wedding. Although the wife signed the agreement herself, she was unfairly pressured into signing.

Provisions in a prenuptial agreement that eliminate spousal support may be overturned. A spouse who is forced to seek state assistance because he or she was denied alimony under a prenup may seek to have the alimony portions of the agreement thrown out.

Most prenuptial agreements are upheld; however, there are nuances you should be aware of before signing one. Prenuptial agreements can affect your rights and responsibilities during marriage and even after a spouse's death or divorce. If you have additional questions or are considering signing a prenuptial agreement, contact a Nebraska family law attorney for advice.