Typically, when two people are engaged to be married, they’re swept away by their own warm feelings and well-wishes from family and friends, and they quickly busy themselves with wedding plans. But it might also be in their best interest to ground themselves in reality and consider whether they ought to enter into a prenuptial agreement.
A prenuptial agreement is a contract that two people sign before they marry. The contract constitutes a legally enforceable plan for how the future spouses will divide up their assets if they divorce someday or if someone dies. Tennessee courts interpret and enforce prenuptial agreements in the same way that they interpret and enforce any other contract.
Generally speaking, prenuptial agreements address the division of property, such as land, buildings, retirement, cars, furniture, and bank accounts.
Prenuptial agreements have to be finalized before the couples marries and they become effective as soon as the parties tie the knot. In Tennessee, prenups are also known as antenuptial agreements.
If any of the following scenarios apply, couples should consider a prenup:
This list is non-exclusive. If you have any doubts about whether you should enter into a prenuptial agreement, contact a Tennessee family law attorney for more advice. It’s important not to leave prenuptial agreement planning and negotiation to the last minute, when you feel pressured by the wedding planning. It’s best to start as far in advance as you can.
Prenuptial agreements in Tennessee are intended to protect property that is owned by spouses before they marry, and to make certain provisions if a spouse dies. For example, a prenuptial agreement can include some or all of the following issues pertaining to property:
The Tennessee appellate courts have decided that spouses may use prenuptial agreements to waive or limit their rights to future alimony. The rationale for this decision is that divorce is commonplace and life’s circumstances change so rapidly and unexpectedly that parties should be free to negotiate and contract around this issue in whatever way makes the most sense to them.
The parties are free to include their own agreement about child custody and child support in a premarital agreement. If they divorce and no one challenges the prenuptial agreement, the custody and support provisions will be self-enforced. However, Tennessee law does not permit custody and support to be determined in a prenuptial agreement. The Tennessee family courts retain the ultimate authority to decide custody based on the best interests of the child, and support based on the applicable guidelines. Therefore, if the prenuptial agreement is challenged, the judge will disregard the parties’ custody and support agreements and decide those issues independently.
For a prenuptial agreement to be valid in Tennessee, both parties must have fully disclosed their assets and the values before signing off on the agreement. Prenuptial agreements that are based on fraud, coercion (meaning, persuasion by force), or duress (meaning, threats or violence intended to change someone’s mind) will be struck down by reviewing courts. Whether disclosure is full and fair depends on the relative sophistication of the parties, the apparent fairness or unfairness of the agreement, and any other circumstances unique to the parties and their situation.
It’s also wise to include a choice-of-law provision in a prenup. Choice-of-law refers to which state’s law will be used to decide any disputes about the contract. This can be important in the event that the marriage deteriorates and someone relocates. Deciding in advance whether Tennessee law, or some other state’s law, should be used to interpret the contract can save you a great deal of time and money.
It’s also advisable for each spouse to seek independent advice from an accountant or tax professional about the tax ramifications of a proposed prenuptial agreement.
Finally, courts are much more likely to enforce prenuptial agreements if both parties are separately represented by their own respective attorney. This is because when each party is represented by counsel, it’s more likely that disclosure of assets will be full and fair. If the poorer spouse can’t afford to hire a lawyer, it’s advisable for the wealthier spouse to offer to pay for independent counsel to represent the poorer spouse and review the agreement.
Yes. It's a good idea to make sure the original prenup contains a provision explaining how to modify or terminate the agreement in the future.