Prenuptial Agreement

September 23, 2011

A prenuptial agreement is an agreement made before a marriage that concerns arrangements for when the marriage ends by divorce or death of one of the parties. These agreements are also known as premarital agreements or antenuptial agreements. These agreements usually describe how the parties’ money and possessions will be divided, although some agreements cover additional topics, such as arrangements for children from prior marriages or children that the marriage may produce.

Premarital agreements are often used when one or both of the people to be married have children from a previous relationship and there is a desire to keep assets available for those children rather than having those assets awarded to a new spouse. These agreements are also used when there is a great disparity between the incomes or assets of the people who are to marry and the person with greater resources wants to keep those resources in the event of a divorce. For example, the person who is wealthy may seek to limit the amount of property or support that the new spouse could claim upon divorce, and may seek an agreement that a certain sum would be awarded if the marriage lasts for a year and greater amounts would be awarded if the marriage lasts longer.

These agreements are contracts, and courts usually enforce contracts, which means that courts can make people live up to their agreements. But historically courts did not enforce premarital agreements because the agreements were thought to promote divorce. With the increasing frequency of divorce, courts are increasingly enforcing prenuptial contracts.

These agreements are not typical contracts, like for the sale or purchase of products. Prenuptial agreements are made between people who love and trust each other and will be promising to spend the rest of their lives together. Because of this relationship between the parties, courts look at these agreements much more carefully before enforcing them.

Courts often find out whether each person had a lawyer to represent them in making the agreement. This is not required for most other contracts, but may be required before a prenuptial agreement can be enforced. The wealthier person will almost surely have a lawyer prepare the contract and the court may require a separate lawyer for the person with less resources.

Courts may also require that each party tell the other what income and assets she or he has. This is done to make sure that the person with fewer resources knows what kind of income or assets she or he is agreeing to do without in the event of divorce.

Sometimes prenuptial agreements are not enforced because they were made under duress. This means that someone was forced to sign the agreement or given little choice. Agreements that are proposed immediately prior to the wedding may be examined for duress.

SEE ALSO: Divorce

Suggested Reading

  • Haman, E. (1998). How to write your own premarital agreement. Naperville, IL: Sphinx.
  • Lindey, A., & Parley, L. (1999). Lindey and Parley on separation agreements and antenuptial contracts. New York: Matthew Bender.

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