Frequently Asked Questions about Prenuptial Agreements
This information comes from our friends at Nolo Press. For more information or to order this book, visit Nolo's site at http://www.nolo.com.
1. What is the difference between a living together agreement and a premarital agreement?
Before a couple marries, the parties may make an agreement concerning certain aspects of their relationship after they marry. This agreement might cover the their responsibilities and property rights during marriage-for example, how the mortgage will be paid and who will stay home to take care of the kids. But more likely, it will determine how property will be divided, and whether alimony will be paid, in the event the couple later divorces. These agreements are also called antenuptial or prenuptial agreements.2. Are premarital agreements legal?
Courts usually uphold premarital agreements unless one person shows that the agreement is likely to promote divorce (for example, by providing for a large alimony amount in the event of divorce), was written and signed with the intention of divorcing or was created unfairly (for example, one spouse giving up all of the rights in his spouse's future earnings without the advice of an attorney).But courts won't uphold agreements of a non-monetary nature. For example, you can't sue your spouse for failure to take out the garbage, even if your premarital agreement says that he or she must do so every Tuesday night.
3. Should my fiancé and I make a premarital agreement?
Whether you should make a premarital agreement depends on your circumstances and on the two of you as individuals. Some couples choose to make a premarital agreement as a way of clarifying their intentions and expectations, as well as their rights should they later split up.
On the other hand, some couples make premarital agreements to circumvent what a court might decide in the event of a divorce. Often this happens when one partner has property that he or she wishes to keep if the marriage ends-for example, a considerable income or a family business. Perhaps most frequently, premarital agreements are made by individuals who have children or grandchildren from prior marriages. In this case, a partner may use a premarital agreement to ensure that the bulk of his or her property passes to the children or grandchildren, rather than the current spouse.
4. Are there rules about what can or cannot be included in a premarital agreement?
A law called the Uniform Pre-Marital Agreement Act provides legal guidelines for people who wish to make agreements prior to marriage regarding ownership, management and control of property; property disposition on separation, divorce and death; alimony; wills; and life insurance beneficiaries.
States that haven't adopted the Act (or which have made some changes to it) have other laws, which often differ from the Act in only minor ways. One important difference is that a few states, including California, do not allow premarital agreements to modify or eliminate the right of a spouse to receive court-ordered alimony at divorce. Other states have their own quirky laws-Maine, for example, voids all premarital agreements one and one half years after the parties to the contract become parents, unless the agreement is renewed.
In every state, whether covered by the Act or not, couples are prohibited from making binding provisions about child support payments.
States That Have Adopted the Uniform Pre-Marital Agreement Act:
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Arizona Arkansas California Hawaii Illinois Iowa Kansas |
Maine Montana Nebraska Nevada New Jersey North Carolina North Dakota |
Oregon Rhode Island South Dakota Texas Utah Virginia |
5. Can my fiancé and I make our premarital agreement without a lawyer?
You can look up the laws for your state and write your agreement yourselves. Unfortunately, however, there's no good self-help resource for writing premarital agreements, and if you make a mistake, a court may find your agreement unenforceable. If you'd like to draft a contract on your own, we recommend that you have an attorney look it over to make sure you've followed the law to the letter.
6. I've been living with someone for several years and we've decided to get married. Will our existing property agreement be enforceable even after we are married?
Probably not. To be enforceable, contracts made before marriage must be made in contemplation of marriage. This means that unless your living together contract is made shortly before your marriage, when you both plan to be married, a court will disregard it.If you want to convert your living together contract into a premarital agreement, follow these steps:
- Use your upcoming marriage as an opportunity to take another look at your agreement, and make any agreed-upon updates and changes.
- Rewrite your agreement. Call it a premarital or prenuptial agreement, and state that it is made in contemplation of marriage and does not take effect until you marry.
- Because there is no good self-help resource in this area, and because even a small mistake can result in your agreement later being held unenforceable, have your agreement checked-out by a lawyer.
- Sign the document in front of a notary.
