Nuptial Agreements

What are Premarital Agreements?

Pre-Marital Agreements (also called "pre-nuptial" or "ante-nuptial agreements") are binding legal contracts between you and the one you intend to marry.

Among the purposes people have in wanting such written agreements is to try to ensure that their assets remain theirs if the marriage fails, to provide that their assets, or at least a large portion of them, go to their children in the event of death, and to work out arrangements for matters that may become problems after the marriage.

Are Premarital Agreements Valid?

Most states generally favor prenuptial agreements because they encourage people who might not get married to become married. However, whether prenuptial agreement you are considering will be valid depends on many facts and circumstances.

What Should I Do to Have a Valid Premarital Agreement?

Generally you will want to:

  • Make full and complete written disclosure of each others’ assets and liabilities, well in advance of the wedding,
  • Make sure that the terms are not unreasonable, and would be considered fair, under the circumstances, and
  • Give both parties a reasonable opportunity to review the proposed agreement with his and her own independent legal counsel well before the wedding.

Can Premarital and Post Marital Agreements Alter the Division of Marital (Community) Property?

Yes, as long as the agreement meets with the requirements under state law.

An "ante-nuptial" (from ante=before, not anti=against) or "premarital agreement" is a legal contract between two people who are about to be married. In the agreement, the prospective husband and wife may agree upon the rights that each will have to the property that they bring into the marriage, and/or acquire during the marriage. They may also agree as to the amount of support owed to the other in the event of divorce, and their respective inheritance rights. The premarital contract, if properly made, with sufficient disclosure, alters the state's typical rules for the division of marital property upon divorce or death.

A post marital agreement is a similar contract between a husband and wife, but after they are married. This agreement may alter the rules for the division of property between the spouses in the event of divorce or death. A particular form of post marital agreement, often referred to as a Marital Settlement Agreement, specifies the distribution of property and responsibility for debt between the respective spouses as part of the divorce proceeding.

Laws in each state governing these agreements vary from state to state. To be valid in most states the agreement must:

  • Be in writing
  • Be signed by both spouses
  • Have been accompanied by sufficient disclosure of all the assets, income and debt of each spouse
  • Have allowed the parties ample opportunity to consider its contents, and obtain legal advice, before signing, and
  • Be free from fraud, duress and entered into freely and voluntarily.
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