Prenuptial Agreements

By: LawInfo

Published: 12/2008

Marriage is forever. Or so is the intent when two people promise to love and support each other until death do they part. However, sometimes life does not work out as planned and, for whatever reason, a married couple seeks a divorce.

The divorce rate in America is often approximated at 40-50%. That rate is significantly higher if the spouses are on their second or third marriage. Knowing that the chances of divorce are statistically significant, many couples decide to enter prenuptial agreements prior to their wedding day.

A prenuptial agreement can explain how the couple’s property should be divided between the spouses in the case of a divorce and explains what each spouse’s responsibility will be to continue to financially support the other spouse after the divorce.

Are Prenuptial Agreements Valid?

Prenuptial agreements are recognized in every state of the union and will be honored if they are properly drafted and executed. In order to be considered by the court in a divorce proceeding, a prenuptial agreement must be in writing and must be entered into voluntarily. The agreement must be executed according to the specific requirements of state law. Many states require a notary public to witness the agreement.

If either spouse contests the validity or applicability of a prenuptial agreement then the court will need to decide whether the agreement should be followed. It is likely that a properly executed agreement will be set aside if the court finds either one of the following two circumstances to exist. First, if either party was not complete and truthful in his or her disclosure at the time the prenuptial agreement was executed then the agreement might be set aside. Neither spouse may lie about nor omit information about assets, income or anything else affecting his or her net worth. Second, if any part of the agreement is unconscionable then the agreement might be disregarded.

What About the Children?

It is important to emphasize that prenuptial agreements apply only to the spouses. Issues related to any children of the marriage, such as child support, visitation and custody cannot be determined by a prenuptial agreement. The reason is that the judge in the divorce proceeding is under an obligation to make determinations for the children based on the children’s best interest.

Do I Need a Prenuptial Agreement?

This is an intensely personal question that depends on your own circumstances. Many attorneys recommend prenuptial agreements to their clients who are wealthy, who are entering a second or subsequent marriage or who have children or other family members whom they want to provide for in the future. However, even young people who are entering their first marriages right out of school and have no money and no dependents may decide that a prenuptial agreement is important to their union.

Prenuptial agreements used to have a stigma attached to them. People used to assume that a couple was not committed to staying together forever if they executed a prenuptial agreement. Today, that stigma is largely gone and prenuptial agreements are an accepted part of the marriage process.