Prenuptial Agreements in Vermont

Couples who are engaged to be married usually have their heads in the clouds, eagerly looking forward to all the best parts of marriage. It's difficult to shift focus to something as serious as property rights in the possible event of divorce. But couples who plan to marry should think about these issues before they get married, because failing to plan in advance can lead to heartbreak down the road.

What Is a Prenuptial Agreement?

A prenuptial agreement is a legally binding contract that is made with a view toward what will happen to the spouses' respective property when they marry and divorce. It sets forth a plan for how the spouses will divide up their assets if they should happen to divorce or, occasionally, if one of them dies. Prenuptial agreements are concerned with the division of property, which is defined as any interest in real property (like land or buildings) or personal property (tangible objects like jewelry and automobiles or abstract objects like retirement accounts).

Prenuptial agreements are also known as premarital or antenuptial agreements in some jurisdictions.

Who Should Get a Prenuptial Agreement?

If any of the following scenarios apply, couples should consider getting a prenuptial agreement:

• One or both spouses are bringing major debt into the marriage.
• One or both spouses are bringing property into the marriage.
• One spouse is much wealthier or poorer than the other.
• One or both spouses are remarrying.
• One or both spouses have children.

This list is non-exclusive. If you have any doubts about whether you should enter into a prenuptial agreement,contact an experienced Vermont family law attorney for more advice.

What Issues Can a Prenuptial Agreement Cover?

Prenuptial agreements in Vermont can address some or all of the following issues:

• the rights and obligations of each spouse regarding any property owned by one or both of them
• who has what rights to buy, sell, use, transfer, exchange, abandon, lease, use, assign, create a security interest in, mortgage, encumber (meaning, to take a loan against something), dispose of, or otherwise manage or control property
• the division of property if one of the spouses dies or if the parties separate or divorce
• the right to alimony, and
• any other matter that doesn't violate Vermont's public policy or other laws.

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

Vermont law does not preclude pre-nuptial agreements from establishing child support for a child born outside of the marriage. However, Vermont's laws and case decisions do not mention anything about using prenuptial agreements to provide for children born as a result of marriage.

This doesn't mean that a prenuptial agreement can't contain an agreement about child support and custody. If the parties divorce and decide to abide by the terms of their prenuptial agreement, they can self-enforce provisions about child custody and support. However, if they disagree and wind up in family court, a judge may give little to no consideration to what the prenuptial agreement says about these topics.

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

The Uniform Premarital Agreement Act ("UPAA") was initially developed in 1983 by the National Conference of Commissioners on Uniform State Laws in an attempt to harmonize the law surrounding prenuptial agreements and to ensure legal conformity across the fifty states. To date, most but not all states have adopted the UPAA. Vermont is one of the states that has not adopted the UPAA.

Instead of following the UPAA, Vermont has its own rules. For a prenuptial agreement to be legally valid in Vermont, all of the following requirements must be satisfied:

• The agreement has to be in writing.
• Both spouses must have chosen voluntarily to enter into the agreement. One spouse can't twist the other spouse's arm with threats or other kinds of cruelty and manipulation, and the party who has more assets can't exert undue pressure on the spouse with fewer assets in an effort to make them sign.
• The agreement can't be "unconscionable," meaning that the agreement can't be grossly unfair to one spouse over the other and can't "shock the conscience." For example, if the parties later divorce, the terms of the agreement can't make one spouse rich and leave the other spouse impoverished.
• The agreement must disclose all relevant information at the time the parties sign. Generally this means that the parties must fully and fairly disclose all information about their own assets and liabilities.
• The agreement has to be signed in front of a notary public, which can be done at a courthouse, a bank, and a law office, among other locations.

All of these statements must continue to be true throughout the life of the agreement.

Ultimately, marital property settlements have to be decided by a family law judge. Title to property is immaterial. The judge will make an equitable distribution of property "without disturbing separate property," meaning that the judge will respect the terms of a valid prenuptial agreement. In rendering a decision about marital property that isn't covered in the prenuptial agreement, the judge will consider all of the following factors:

• the length of the marriage
• the age and health of the spouses
• the occupation, source, and amount of income of each of the parties
• each spouse's vocational skills and employability
• the contribution by one spouse to the education, training, or increased earning power of the other
• the value of all property interests, liabilities, and needs of each party,
• whether the property settlement is in lieu of or in addition to maintenance (alimony)
• the opportunity of each spouse to acquire capital assets and income
• the desirability of awarding the family home, or the right to live there, for reasonable periods, to the spouse who has custody of the children
• the party who acquired the property
• the contribution of each spouse in the acquisition, preservation, and depreciation or appreciation in value of the respective estates, including the nonmonetary contribution of a spouse as a homemaker, and
• the respective merits of the parties (meaning, the strength of each of their divorce cases).

Can I Change a Prenuptial Agreement After Marriage?

Yes. After the parties are married but before they divorce, they can revise the prenuptial agreement in what is known as a "post-nuptial agreement." Both parties simply have to agree and the new agreement must be in writing. They can stay married after entering into a post-nuptial agreement.