Prenuptial Agreements

A prenuptial agreement, antenuptial agreement, or premarital agreement, commonly abbreviated to prenup or prenupt, is a contract entered into by two people prior to marriage or civil union. The content of a prenuptial agreement can vary widely, but commonly includes provisions for the division of property should the couple divorce and any rights to spousal support during or after the dissolution of marriage.

There are two types of prenuptial agreements: marriage contract for people who are married or about to be married, and cohabitation agreement for unmarried couples. A variation for people who are already married is a postnuptial agreement, also called a postmarital agreement.

In the United States, prenuptial agreements are recognized in all fifty states and the District of Columbia. Likewise, in most jurisdictions, five elements are required for a valid prenuptial agreement:

  1. agreement must be in writing (oral prenups are always prohibited);
  2. must be executed voluntarily;
  3. full and/or fair disclosure at the time of execution;
  4. the agreement cannot be unconscionable;
  5. it must be executed by both parties (not their attorneys) “in the manner required for a deed to be recorded”, known as an acknowledgment (law), before a notary public.

Prenuptial agreements in all US states are not allowed to regulate issues relating to the children of the marriage, in particular, custody and access issues. The reason behind this is that matters involving children must be decided in the childrens’ best interests. However, this is controversial: some people believe that as custody battles are the worst part of a divorce, couples should be able to settle this in advance.

With respect to financial issues ancillary to divorce, prenuptial agreements (also commonly known as “premarital agreements”) are routinely upheld and enforced by courts in virtually all states. There are circumstances in which courts have refused to enforce certain portions/provisions of such agreements. For example, in an April, 2007 decision by the Appellate Division in New Jersey, the court refused to enforce a provision of a prenuptial agreement relating to the wife’s waiver of her interest in the husband’s savings plan. The New Jersey court held that when the parties executed their prenuptial agreement, it was not foreseeable that the husband would later increase his contributions toward the savings plan.

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