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Prenuptial Agreements

A prenuptial agreement, also referred to as an prenup or premarital agreement, is a contract written before a marriage, specifying each person’s assets and what will happen to them if the marriage comes to an unnatural end.

Celebrities bring prenuptial agreements into the limelight, but even people of modest income levels have them. A prenuptial agreement can avoid confrontation in the event of a divorce and protect assets for children from previous and present marriages. A prenuptial agreement also can prevent one spouse from taking advantage of the other with regards to property, wealth and debt. For many people, a prenuptial agreement is a type of financial insurance.

While a prenuptial agreement can outline finance, credit, debt and estate matters, it cannot specify child custody, child support, visitation rights or, in many cases, alimony. Emotional, social and political issues, such as child-rearing beliefs, religion, relationships with in-laws or siblings and pet preferences are discouraged though legally permissible. Legal experts suggest including only the most important concerns between a couple so that the prenuptial agreement will be easier to enforce. Prenuptial agreement are recognized in all 50 states and the District of Columbia but are upheld on a state and case basis.

Types of Prenuptial Agreements

A marriage contract is drawn for people planning to get married; a cohabitation agreement is drawn for unmarried couples living together. Couples who are already married but do not have a prenuptial agreement may create a postnuptial agreement, which is similar in nature.

While laws vary regarding the validity and enforcement of prenuptial agreements, these are the requirements for every state:

The prenuptial agreement must be in writing. Any kind of oral agreement is prohibited unless it is in addition to a written agreement.
It must be executed voluntarily, without pressure or coercion.
It must have full disclosure of income, assets and liabilities.
It must be signed by both parties and acknowledged before a notary public.

California is different from other states in its enforcement of prenuptial agreements because it allows registered domestic partners to enter into such agreements. The state also allows couples to waive their rights to community property and limit spousal support.

Although both parties do not need to have lawyers draft a prenuptial agreement, consulting an attorney will ensure both parties are represented fairly and make informed decisions. Prenuptial agreements that are signed a significant time before the wedding are encouraged to show the agreement wasn’t signed under duress.

Last update: Sept 25, 2008