A prenuptial or pre-marital agreement (“prenup” for short) is a written contract created by two people before they are married. A prenup typically lists all of the property each person owns (as well as any debts) and specifies what each person’s property rights will be after the marriage.
An agreement made during marriage, rather than before, is known as a “postnuptial,” “post-marital,” or “marital” agreement.
You may need a Pre-Marital Agreement if:
- You want to pass separate property to children from prior marriages.
- You want to clarify financial rights.
- You want to avoid arguments in case of divorce.
- You want to get protection from debts.
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The requirements for a prenuptial agreement are the same as for any contract it must be executed voluntarily, freely and knowingly. Moreover, laws require the agreement to be in writing. Parties should consult an attorney before signing a prenuptial agreement. Further, a party is required to have a reasonable opportunity to consider the ramifications of the agreement. For instance, an agreement presented to the bride on her wedding day does not give her reasonable time to speak with an attorney and will probably not be enforced.
Uniform Premarital Agreement Act (UPAA)
The Uniform Premarital Agreement Act (“UPAA”) is recognized by many states and simplifies the creation and requirements of prenuptial agreements. The Act:
- defines a premarital agreement;
- requires that the agreement be in writing and signed by both parties; and
- makes the agreement effective upon marriage.
Under the UPAA, a premarital agreement is defined as “an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.”
Invalid prenuptial agreements
The UPAA sets out several circumstances that can occur during the process of executing a prenuptial agreement that can make the agreement invalid and unenforceable against one of the parties. An agreement will be invalid if the agreement:
- is not executed voluntarily;
- was unconscionable when it was executed;
- was signed without a full financial disclosure or waiver of disclosure and the party did not have adequate knowledge of the other party’s finances; or
- provided so little support that a spouse is eligible for welfare or public assistance when the marriage terminates.
Provisions included in a prenuptial agreement
The UPAA gives a long list of issues which should be addressed in a prenuptial agreement in order to fully resolve problems that arise when a marriage ends. The parties may agree:
- to their rights as to each other’s property owned at the time of the marriage or acquired during it;
- how each spouse controls their property, i.e., limits on their ability to buy, sell, transfer or mortgage the property;
- to the disposition of the property when the marriage ends;
- to an amount of spousal support or the elimination of spousal support;
- to execute a will or trust to carry out the provision of the prenuptial agreement;
- on rights in insurance proceeds and benefits;
- on which state’s laws will apply to interpret and enforce the agreement; and
- to any personal obligations one party has to another.
Can I refuse to sign a prenuptial agreement?
Yes. You will have to weigh the detriment of signing an agreement against the possibility that the marriage may not occur unless you do sign.
TIP: Agreements presented immediately prior to the marriage are generally found to have been signed under duress and are invalidated by the courts.
Do I have to disclose my net worth and income to my fianc� if we enter into a prenuptial agreement?
Yes. Both of you must disclose the value of the assets you own and your income as well as your debts for the agreement to be valid.
TIP: To avoid any confusion as to what assets are covered by the agreement, make a list of all your assets and debts and attach them to the prenuptial agreement as exhibits.
Should I have my own attorney review the agreement?
Yes. Your own attorney can walk you through the agreement and explain the consequences of entering into it.
TIP: If the bride, for example, is the one presenting the agreement, she should require her fiance to consult an attorney. If he does not, he can later argue that he signed the agreement without knowing what it meant.
SIDEBAR: Consultation with an attorney is not a requirement unless required by the law in the state in which the parties live. The prenuptial agreement will be enforced if it is valid even though it was signed without talking to a lawyer.
We have a cohabitation agreement. Do we still need a prenuptial agreement?
Yes. Prenuptial agreements become effective when you marry; cohabitation agreements do not.
How long before the wedding do I have to sign the agreement?
You may sign the agreement at any time before you marry. However, a greater amount of time between signing the agreement and the actual wedding tends to show that the agreement was entered into voluntarily after considering the ramifications.
My spouse demanded that I sign a prenuptial agreement the night before our wedding. All of our friends and family had already arrived, and I felt that I had to sign it. Is the agreement still enforceable?
Possibly not. Because you were presented with the prenuptial agreement immediately prior to the wedding, you can argue that you were pressured to sign the agreement and that it is not valid.
My husband told me that I would get certain property and cash payments if we divorced. Do I have a valid prenuptial agreement?
No. Laws generally require a prenuptial agreement to be in writing and signed by both of the parties.
My prenuptial agreement states that I am entitled to no support if I divorce my husband. Is this valid?
Yes. However, a judge will not look favorably on the agreement and may decide that the provision denying support is unconscionable, especially if you have no other means of support.
SIDEBAR: “Unconscionable” means unreasonable or morally unacceptable. Contracts that are found to be unconscionable are not valid and cannot be enforced.
My fiance presented me with a prenuptial agreement with “phased-in” support provisions. What does this mean?
Phased-in support or distribution of property provides that the longer the marriage lasts, the more money or property a spouse is entitled to receive. For instance, if a marriage ends before 1 year, the agreement may not give you a share in any property. As each year passes, your share increases until at 10 years of marriage you get 50% of the property your fianc� owns.
TIP: Phased-in increases can also be based on increases in a spouse’s income, assets or property.
Can a prenuptial agreement limit child support payments?
No. Child support payments are based on legal guidelines.
Does the prenuptial agreement cover property and assets my husband and I acquire during marriage in a community property state?
Yes. Your prenuptial agreement will supersede laws that would normally divide marital property between the spouses. In your case, the agreement will be enforced rather than state law.
Can we modify our prenuptial agreement during the course of our marriage?
Yes. In fact, if circumstances change, the agreement should be modified. For instance, if one of you has suffered a financial setback, the support payments provided for in the agreement may need to be reduced.
Both parties must agree to and sign off on any amendments or modifications to the agreement. For example, one spouse cannot unilaterally decide to decrease the support payments provided for in the agreement. Modifications and amendments to the prenuptial agreement must be in writing to be enforceable.
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