A premarital agreement, which is often also called a prenuptial agreement, is an agreement entered into by two parties before they get married. A primary focus of a premarital agreement is how property will be divided if the couple gets a divorce. Many premarital agreements also contain provisions on spousal support and how assets will be divided if one of the parties commits adultery. The rationale behind a premarital agreement is to limit risk. A husband may want to make sure he does not lose a lot of his property if his wife decides to divorce him.All of the states in the country as well as the District of Columbia recognize premarital agreements. However, there are several requirements for a premarital agreement to be valid. To be valid, the agreement must be in writing, must be entered into voluntarily by the parties, must be executed by the parties before a notary public, and cannot be unconscionable. A premarital agreement would be unconscionable if it is excessively unfair to one of the parties and gives too much power to the other spouse in the event of a divorce.
Premarital agreements in the United States cannot decide the issue of child custody. This is one limitation on what a premarital agreement can determine. The rationale behind this is that the child's welfare is of the utmost importance and parents should not be allowed to make such a decision in lieu of a court deciding what is in a child's best interest. Most courts uphold premarital agreements when it comes to financial issues that are part of a divorce. Through a premarital agreement, a spouse can waive his or her rights to property, alimony, or inheritance. An aspect of premarital agreements that is important is what law will govern when the parties divorce. If the parties do not have a choice of law clause in the premarital agreement, the law of the state where the divorce takes place will govern the division of property. Therefore, if a couple wants the law of the state where they got married to control, they should specify that in the premarital agreement. In addition, a couple may insert a provision into the premarital agreement that specifies that the agreement will expire after a certain period of time.
Someone who is getting a divorce can attack a premarital agreement and claim it is invalid for several reasons. One reason might be that the party claims the premarital agreement was unconscionable because it was too unfair to them and too favorable to the other side. Another reason that a court may find a premarital agreement unenforceable can be that one party failed to disclose assets to the other. For example, a premarital agreement may be found invalid if the divorcing husband did not tell his wife about 4 sports cars he owned and a bank account with 5 million dollars in it at the time they entered into the agreement. This would be grounds for finding a premarital agreement invalid. A party can also contend that they did not sign the premarital agreement voluntarily. They can claim that the premarital agreement was only signed as a result of fraud or duress. In conclusion, all states recognize premarital agreements but, in order for the agreements to be valid, the couple must have entered into the agreement voluntarily and honestly.
