A prenuptial agreement, or premarital contract, is a contract created to protect parties entering into marriage. With divorce rates increasing and remarriage occurring equally as often, many couples feel the need to ensure all prior assets are secured in their name in case of a divorce. With this contract becoming more popular, greater numbers of consumers are seeking to create these documents themselves.
According to Weisberg's "Modern Family Law," "prenuptial agreements generally limit spousal property rights in the event of dissolution and death." These agreements normally discuss support and property rights during and after the marriage, the education, rearing and care of future children, and personal obligations and rights of the spouses during the marriage. Typically, these agreements include provisions discussing the consequences of adultery, the overall future expectations of spouses toward one another, and the enumeration of prior marriage assets.
Support and Property Rights
Under the Uniform Premarital Agreement Act, which mirrors the law in most states, a prenuptial agreement can be drafted to protect a person's assets before marriage. Assets typically covered in this type of an agreement include real estate, trusts, savings accounts and investments, stocks and bonds, and any property the value of that exceeds $5,000. Should this contract ever be utilized, it is vital that the party has kept these items separated from marital assets to ensure accurate accounting.
Some states are willing to recognize prenuptial agreements that state personal obligations of the respective parties. For example, couples may preclude each other from questionable affiliations with the opposite sex and require that certain consequences take place should the agreement ever be compromised. States tend to vary on their enforcement of provisions that deal with amounts of intimacy, household chores or home economic requirements, so check with an attorney if drafting any of these provisions.
Care of Children
Perspectives and parenting practices have a tendency to change throughout a marriage, so the courts tend to be hesitant about enforcing contracts that deal with these issues. If desiring to specify such areas of married life, consider using less specific expectations such as "wife is expected to help children with their homework," or "couple will begin setting aside a college savings account for each child that may not be dipped into pending a divorce."
Because this is a contract, it is not always the document itself, but instead the surrounding circumstances of the drafting and signing that determines the validity. According to the Uniform Premarital Agreement Act, two requirements have to be met for the contract to be valid. First, the contract must be entered into voluntarily. Secondly, the contract cannot be unconscionable upon signing. Definitions of these terms differ in each state, but generally the prenuptial agreement has to be signed with both parties agreeing to it, and having complete knowledge and equal bargaining power at the creation.
Form contracts are a useful tool for people seeking to create their own prenuptial agreement. Form contracts are available online at websites such as AllLaw.com. The forms are basic, but posses all necessary components to comply with the general legal principles enumerated by most states. Form software is available online and at local office supply retailers. These forms tend to be more interactive and will provide phrasing for all the necessary components of the contract. Form drafting companies such as LegalZoom.com provide agreements that meet each state's specific drafting requirements.
- UPAA, 9C U.L.A. 35 (2001)
- Weisberg. Modern Family Law Cases and Materials 2nd Edition. Aspen Publishers 2002