By Molly Murphy
A prenuptial agreement, antenuptial agreement, or premarital agreement, commonly called a prenup, is a contract entered into marriage and or a civil union or any other agreement prior to the main agreement by the people intending to marry or contract with each other.
In the United States, prenuptial agreements are recognized in all 50 states.
In most states, five elements are required for a valid prenuptial agreement: the agreement must be in writing (oral prenups are always prohibited); the contract must be executed voluntarily; the contract must have full and/or fair disclosure at the time of execution; the agreement cannot be unconscionable; and the contract must be executed by both parties (not their attorneys) typically before a notary public.
Prenups may include terms for the forfeiture of assets as a result of divorce on the grounds of adultery; further conditions of guardianship may be included as well. A prenup is commonly prepared in order to protect assets of both parties, as one party may enter the marriage with significantly more assets than the other.
A prenup is always a good tool to protect the financial future of children from prior marriages or relationships.
Prenuptial agreements are not allowed to regulate issues relating to the children of the marriage, in particular, child custody and access of the minor children. The reason behind this is that matters involving children must be decided in the children's best interests.
Judges could not enforce a previously decided parenting plan, as said plan may be written prior to the birth of the child, or the parties’ current situation.
Prenuptial agreements are, at best, a partial solution to circumventing some of the risks of marital property disputes in times of divorce. They protect minimal assets and are not always the final word.
Nevertheless, they can be very powerful and limit parties' property rights and alimony. It is difficult to convince a judge to set aside a properly drafted and executed prenup. A prenup can dictate not only what happens if the parties divorce, but when they die.
With respect to financial issues ancillary to divorce, prenuptial agreements are routinely upheld and enforced by courts in virtually all states. A sunset provision may be inserted into a prenuptial agreement, specifying that after a certain amount of time, the agreement will expire.
Please remember that you need to follow certain rules for your prenup to be recognized by the court.
The first rule is that a prenup will not be enforced if the other party signs under duress. The second is when you keep financial secrets from the other party, the prenup may be unenforceable.
Also, you can write anything you want in the prenup, but a judge will not find it enforceable if it is unfair to either of the parties. A prenup can be invalid if the other party is not represented by an attorney.
The final rule is to not ignore your own prenup. If you act in a way that is contradictory to the prenup, the Judge may find it unenforceable.
If you believe you will need to have a prenup prepared, please contact an attorney. Each state varies in their laws and their enforcement of said contracts.
Cordell & Cordell has men's divorce lawyers located nationwide.