Prenuptial agreement

A prenuptial agreement or antenuptial 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.


 

• 1Divorce law
• 2Divorce legal issues
• 3Marriage legal issues
• 4Prenuptial agreement
  • 4.1Types
  • 4.2Legal Recognition
  • 4.3United States Law
  • 4.4Catholicism
  • 4.5External Links
• 5Property distribution

[top]Types

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.

[top]Legal Recognition

Laws around the world vary in their recognition of such agreements.

Historically, judges in the United States frowned upon prenuptial agreements as corrupting what marriage was supposed to stand for, and often they would not recognize them. Nowadays they are recognized, although they may not always be enforced. It is common to have legal advice to the effect that both parties should have lawyers present during the signing, for a judge to ensure that neither party has been coerced into the agreement.

Prenuptial agreements are, at best, a partial solution to obviating some of the risks of marital property disputes in times of divorce. They are not the final word.

[top]United States Law

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

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

Of note, unlike all other contract law, consideration is not required, although a minority of courts point to the marriage itself as the consideration. Through a prenup, a spouse can completely waive rights to property, alimony or inheritance as well as the elective share and get nothing in return.

A sunset provision may be inserted into a prenuptial agreement, specifying that after a certain amount of time, the agreement will expire. In a few states, such as Maine, the agreement will automatically lapse after the birth of a child, unless the parties renew the agreement. In other states, a certain number of years of marriage will cause a prenuptial agreement to lapse. In states that have adopted the UPAA (Uniform Prenuptial Agreement Act), no sunset provision is provided by statute, but one could be privately contracted for.

[top]Catholicism

Prenuptial agreements are a matter of civil law, so Catholic canon law does not rule them out in principle (for example, to determine how property would be divided among the children of a prior marriage upon the death of one spouse).

In practice, prenuptials may run afoul of Church law in a number of ways. For example, they cannot subject a marriage to a condition concerning the future (such as an agreement about the dividing of assets in case of divorce). The Code of Canon Law provides: "A marriage subject to a condition about the future cannot be contracted validly." (CIC 1102)

[top]External Links

Marriage & Divorce: When Prenups Fail




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