Family Law FAQ

What is a Premarital Agreement?

A premarital agreement is a contract entered into, by a prospective husband and wife, before marriage. This agreement generally lays out rights to property, finances and other assets of both parties. This type of agreement may also specify each individual’s rights in the case of a separation or divorce, equitable distribution, alimony, palimony and any attorney fees or costs. It is also possible for a premarital (prenuptial) agreement to contain a provision releasing the rights of one party, or specifying inheritance rights, in the event that something takes place in the future, such as divorce or death. After the premarital agreement has been made and the couple has been married, the provisions in the agreement may be altered or cancelled by the written agreement of both parties.

Are premarital agreements legal?

There are federal and state statutes that contain premarital/prenuptial agreement requirements. Such an agreement is valid and legal if it meets the statutory requirements. Generally, a premarital agreement must be in writing, must be signed by both parties, must not be induced by fraud or threat and is considered effective as soon as the couple is married.

Some requirements that a premarital contract may address are as follows:

  • The rights to property of each spouse (including ownership rights and control of property)
  • Which spouse will retain the property rights if there is a divorce, separation or death
  • Inheritance rights
  • Spousal maintenance rights (after and during the marriage)
  • Rights and obligations of each spouse during the marriage
  • Provisions regarding the care and education of children
  • Which state law governs the agreement
  • Shared financial and business rights (such as stocks, bonds, business proceeds, etc.)
  • Other personal matters, rights and responsibilities of both parties

A premarital agreement may not cover some issues, such as diminishing the right to child support or a waiver of basic rights. Such an agreement will also not be enforceable if it is found to be involuntary by one of the parties, the agreement was based on undue influence, there was not full disclosure of finances or assets between the parties when the agreement was made and the right to disclosure was not waived in writing. Additionally, a premarital agreement may not contain provisions that go against public policy.

If my fiancé and I want to have a premarital agreement, when should we have one done?

The amount of time a couple has to create, review and sign a prenuptial agreement may have a basis on whether the agreement is valid. Each party must have enough time to seek independent counsel before signing such an agreement. Courts have differed on the amount of time needed to ensure each party has been able to seek independent legal advice. One day to one week has been a sufficient amount of time in some jurisdictions and not sufficient in others. It depends on the parties and their situation; the courts may look at the timing in each premarital contract on a case-by-case basis to determine if the timing was sufficient and the contract valid.

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