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Key Provisions in a Prenuptial Agreement

Prenuptial agreements are growing in popularity for spouses seeking to bypass their state's laws in the events of divorce and/or death. By entering into a prenuptial agreement, a couple can consent to an agreement containing provisions differing from prevailing law. Ideal candidates for prenuptial agreements are parties who have been previously married, those with children or grandchildren, and those possessing valuable property they desire to keep.

Requirements Vary By State

Prenuptial agreements are governed by state law, and because of this, the requirements vary by state. The Uniform Premarital Agreement Act offers a basic template for use as a starting point prior to the inclusion of state-specific material. Of course, the particular feelings and circumstances of the couple also factor prominently in a prenuptial agreement.

Key Provisions

Despite state-specific variations, there are some general commonalities in prenuptial agreements and suggested key provisions to consider including to ensure validity and enforceability. Prenuptial agreements:

  • are written documents that are signed by both parties
  • disclose assets and income of parties, with particular focus upon the disclosure of the wealthier party to the less wealthy party
  • in some states, may include a knowing waiver of income and asset disclosures if both parties agree
  • cannot result from duress (extreme emotional pressure or stress)
  • cannot result from fraud
  • should be reviewed and signed well in advance of wedding (the greater the lead time, the better; ideally, several months)
  • may be drafted, reviewed, and entered into with or without assistance of counsel
  • may result from negotiations between parties, but negotiations are not required
  • may include that parties' initials at the bottom of key or all pages of the prenuptial agreement, though there is no legal requirement for this
  • may be signed while parties are being video- or audio-recorded to document the parties' understanding of the agreement
  • may be accompanied by handwritten statements of the parties in their own words that reflect their understanding and agreement
  • must be fair and not leave one party destitute in comparison to the other
  • cannot increase the probability of divorce
  • cannot limit rights to child support
  • cannot waive rights to child support
  • will generally be upheld if they contain a blanket waiver of spousal support
  • containing specific spousal support agreements are more challenging to uphold
  • should not contain frivolous, non-monetary demands
  • must be signed voluntarily
  • hould not involve any undue influence
  • must not be unconscionable.