Prenuptial Agreements in Tennessee

Typically, when two people are engaged to be married, they're swept away by warm feelings and well-wishes from family and friends, and they quickly busy themselves with wedding plans. However, it might also be in their best interest to ground themselves in reality and consider whether they ought to enter into a prenuptial agreement.

What Is a Prenuptial Agreement?

A prenuptial agreement ("prenup" for short) 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 as any other contract.

Generally speaking, prenuptial agreements address the division of property, such as land, buildings, retirement, cars, furniture, and bank accounts.

Couples must finalize their prenuptial agreement before the wedding. Prenuptial agreements become effective as soon as the parties tie the knot. In Tennessee, courts also refer to prenups as antenuptial agreements.

Who Should Get a Prenuptial Agreement?

If any of the following scenarios apply, couples should consider a prenup:

• one or both spouses are bringing valuable real or personal property or debt into the marriage
• one spouse has substantially more wealth than the other
• one or both spouses was previously married
• either spouse has children from a previous relationship and wants to be sure to provide for the children and the new spouse upon death

This list is non-exclusive. If you're wondering whether you should enter into a prenuptial agreement, contact a Tennessee family law attorney for advice. It's important not to leave prenuptial agreement planning and negotiation to the last minute when you feel pressured by wedding planning. It's best to start as far in advance as you can.

What Issues Can a Prenuptial Agreement Cover in Tennessee?

Prenuptial agreements in Tennessee are intended to protect property that is owned by spouses before they marry and to make certain provisions in the event the couples divorces or one spouse dies. For example, a prenuptial agreement can include some or all of the following issues:

• the division of accounts
• a requirement that one or both spouses maintain life insurance
• whether a surviving spouse can continue to live in the parties' marital home
• the rights and obligations of each spouse regarding property, and
• the distribution of property in the event of death, separation, or divorce.

Can a Prenuptial Agreement Determine Child Custody, Child Support, and Alimony in Tennessee?

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 agreement about child custody and child support in a premarital agreement. However, Tennessee law does not permit parties to decide custody and support in a prenuptial agreement unilaterally. The Tennessee family courts retain the ultimate authority to determine custody based on the child's best interests and support based on the applicable guidelines.

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

For a prenup 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 come as a result of fraud, coercion (persuasion by force), or duress (threats or violence intended to change someone's mind) will be struck down by reviewing courts. Whether the 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 the court will use to decide any disputes about the contract. Choice-of-law can be important if 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 in the event of a divorce.

Each spouse should seek independent advice from an accountant or tax professional about the tax ramifications of a proposed prenup.

Finally, if each party employs an independent attorney, courts are much more likely to enforce a prenup. When both parties have their own lawyers, it's more likely that disclosure of assets will be full and fair. If the poorer partner can't afford to hire a lawyer, it's advisable for the wealthier partner to offer to pay for an independent attorney to represent the other and review the agreement.

Can I Change or Terminate a Prenup After Marriage?

Yes, but both spouses will have to agree to any change or amendment in writing. 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.