A Premarital Agreement is an agreement between prospective spouses that is made in contemplation of marriage and is to be effective on marriage. Premarital (Prenuptial) Agreements involve complex concepts, and the effects can be far-reaching and financially life-altering.
To be enforceable, a Premarital Agreement must be in writing and signed by both parties. However, unlike most contracts, a Premarital Agreement is enforceable without consideration. In layman's terms, this means that it is not necessary that both parties to the contract give up something in the transaction.
Premarital Agreements may involve the rights and obligations of each of the parties in any of the property of either or both of them, as well as the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control the property of either or both of them.
Additionally, a Premarital Agreement may involve the disposition of property on separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event.
One of the most important and potential life saving features of a Premarital Agreement is that it can modify or eliminate spousal support. Since there is no statutory limit to the amount of temporary spousal support that the court can order during the pendency of a divorce, this one provision alone can save tens of thousands of dollars or more in certain circumstances.
Premarital Agreements can involve the making of a will, trust, or any other arrangement necessary to carry out the provisions of the agreement. Also, the ownership rights in and disposition of the death benefit from a life insurance policy can be altered by a Premarital Agreement.
A Premarital Agreement can provide for the choice of law governing the construction of the agreement and many other matters involving the personal rights and obligations of the prospective spouses. Notwithstanding the broad range of matters that can be contracted for, however, a Premarital Agreement is not enforceable to the extent it purports to require any action in violation of public policy or any statute involving a criminal penalty.
Additionally, a Premarital Agreement cannot adversely affect child support.
Once the parties to a Premarital Agreement are married, the agreement can only be amended or revoked by a written agreement, signed by both parties. Just like the original agreement, there is no necessity for consideration in the amendment or revocation.
If either party can prove that they did not sign the agreement voluntarily, the Premarital Agreement will be found to be unenforceable against them. Additionally, in certain circumstances, if a judge determines that the agreement was unconscionable, the agreement will be found unenforceable. Generally speaking, other common law and contractual defenses are inapplicable to the analysis of the enforceability of Premarital Agreements.
Obviously, Premarital Agreements involve many complex legal concepts. Attempting to create and execute a Premarital Agreement or reviewing one you are being asked to sign without competent legal counsel is a risky endeavor.