Prenuptial Agreements: What They Are and How to Get One

Prenuptial agreements allow couples to control how they will handle property and finances in the event of divorce.

By , Retired Judge

What Is a Prenuptial Agreement?

A prenuptial agreement (sometimes called an "antenuptial" or "premarital" agreement) is a written contract between two people who are planning to marry or, in certain states, enter into a civil union.

Although it can be used for a number of reasons, it's most often a tool to address in advance certain issues that would likely arise in the event of a divorce, or the death of either of the spouses. Note that a valid prenuptial agreement is premised on a complete and truthful disclosure of each spouse's assets and debts prior to executing the agreement.

Who Needs a Prenuptial Agreement?

Those who want to control (to the degree possible) how they will handle property and finances during their marriage and in the event of a divorce or death are good candidates for a prenup. Whether it be for determining what happens to their assets and debts during and after marriage, or seeking to establish each spouse's financial rights and duties, a prenup can provide the means to achieve those goals.

In the case of a possible divorce, identifying issues that can arise in that scenario, and making provisions for dealing with those issues, dramatically reduces the likelihood of confusion and surprises later on. Likewise, if one of the spouses dies, a prenup can dictate how the deceased spouse's estate will be distributed. This is especially useful if you want to ensure that children from a previous relationship receive a share of the estate.

What Happens if You Don't Have a Prenup?

Not having a prenup means that your state's laws will control certain elements of your marriage, including what happens in the event of divorce or death. In the case of divorce, the law of your state will determine what happens to your property, no matter what you may have had in mind for those assets.

That's not to say all your property will be up for grabs. For example, most—if not all—states provide that any property you brought into the marriage (real estate, bank accounts, and so on) should be excluded from a divorce. All well and good, but let's say you have separate money held in a premarital account, and then during the marriage you happen to commingle your money with an account you opened up with your spouse. The original amount you had prior to marriage may now be joint property due to your decision to combine it with marital property.

If you die without a prenup, your state's estate law will govern what happens to your property. You may have wanted most or all of your assets to go to certain family members, but if the law says that the bulk of your estate goes to your spouse, without a prenup and/or a will, those relatives you hoped to provide for may be out of luck.

Even during the marriage, if the law gives your spouse the power to deal with assets simply by reason of being married to you, you've lost exclusive control of that property.

In short, if you don't have a prenup, any issues the agreement could have addressed will now be controlled by whichever laws of your state regulate those issues. And it's possible that at least some of those laws won't align with your wishes.

What Are Some Provisions a Prenuptial Agreement Can Contain?

Many states have adopted the Uniform Premarital Agreement Act (UPAA). This law establishes certain rules governing prenups. If a state hasn't adopted this particular law, in all probability it has something similar.

Here are some of the issues a prenuptial agreement will usually address:

  • each spouse's rights and obligations regarding property they own
  • who is responsible for debts incurred during the marriage
  • what happens to property if a certain event occurs, like a separation, divorce, or death
  • making arrangements to carry out the agreement's terms, such as through a will or a trust
  • who is entitled to the proceeds of life insurance policies, and
  • anything else the spouses want to address, as long as it's not illegal.

Because state laws on prenuptial agreements vary, it's important that you consult with a local family law attorney about what you can include in your prenup. For example, some states may allow you to insert a provision concerning whether a spouse will receive spousal support (alimony) if a divorce occurs. Other states, however, may prohibit this.

Note that the final item in the above list paints with a pretty broad brush. However, just because something isn't illegal doesn't necessarily mean you should include it in the agreement. If you go to court seeking enforcement of a provision, such as who's responsible for vacuuming the house, don't be surprised if the judge unceremoniously sends you packing. Prenups aren't intended to address every situation that can crop up in a marriage, so stick to subjects that are truly significant.

What You Can't Include in a Prenuptial Agreement

Obviously, a prenup may not contain provisions that are illegal. What constitutes an illegal term will depend on a particular state's laws.

As a rule, courts won't enforce provisions in a prenup that attempt to regulate the issues of child support, child custody, or parenting time (visitation). The law gives the courts the power to ultimately determine what's in a child's best interest at the time a custody or child support issue arises, but never in advance, and judges won't tolerate attempts to override that authority. For example, a couple may not agree that they will waive child support in a prenup agreement. A judge has sole authority to issue child support orders, and the right to child support belongs to the child, not the parents.

A prenup should not contain a provision that's "unconscionable." This typically refers to something that shocks the conscience or is grossly unfair. Let's say that a prenup has a provision that tries to eliminate a spouse's potential obligation to pay spousal support. Although the state's laws may permit dealing with spousal support in a prenup, if enforcing that term would leave one of the spouses destitute or otherwise eligible for public assistance, a court would likely find that provision unconscionable.

Depending on your state, a judge will carefully scrutinize an agreement that seems to provide an inducement for divorce. For example, if a prenup permits one spouse to give the other spouse money for not contesting a divorce, a judge might determine that the clause runs counter to the "good faith" that's implied when couples enter into a prenup. That could render that specific provision unenforceable, and it might possibly lead a judge to determine that the entire agreement is suspect.

If a judge finds that a provision in the prenup is not valid, ordinarily it will just remove that item. But be aware that, depending on the circumstances, an invalid term could nullify the entire agreement.

There are a number of other reasons why a prenup might not be valid. Some states may even require that both partners have independent attorneys review the agreement before signing. So it's essential that you consult with a local family law attorney who can provide advice specific to your case.

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