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When is a Prenuptial Agreement Enforceable?



Future wedding partners enter into prenuptial agreements to protect assets and income streams in situations where they have amassed significant wealth or there is a disproportionate amount of wealth between parties. Previously, men were the requesting parties who wanted their future spouses to enter into prenuptial agreements; however, in recent decades, women are equally likely to request their future spouses to enter into such agreements.

Enforcement

State laws govern enforcement of prenuptial agreements. Likewise, state law also governs whether the prenuptial agreement is even valid. If enforceability of a prenuptial agreement is called into question in the event of separation, divorce, or death, a trial may result. The purpose of the trial is to allow the judge to weigh evidence presented and credibility of witnesses to enable her to decide whether the prenuptial agreement is to be enforced.

Prior to recent years, some states failed to recognize premarital contracts, claiming they were violations of public policy, and therefore null and void. For example, it was not until 1982 that Georgia even recognized prenuptial agreements as valid pre-marriage contracts. Today, most states and their courts recognize the right of competent and consenting adult parties to enter into premarital contracts.

Basic Requirements

Generally speaking, prenuptial agreements are enforced if they meet these basic requirements:

  • The agreement addresses the rights and responsibilities of each party in property of either or both.
  • The agreement is in writing and is signed by both parties prior to their marriage.
  • The agreement is entered into voluntarily and is not considered unconscionable (defined as overly one-sided, oppressive, and unfair).
  • The terms in the agreement addressing the parties' financial information are adequately disclosed, or the parties knowingly and willingly waived financial disclosure.
  • The agreement's enforcement would not violate all of one party's marital rights.
  • The agreement was signed well before the wedding ceremony to avoid any possible situation of coercion (preferably one to two months prior).
  • The agreement is considered fair and does not render either party destitute.

Additional Considerations

Prenuptial agreements are not permitted to change or end the right of either spouse to receive spousal support in accordance with a court's order in states like California. Many states also prohibit the inclusion of frivolous demands such as appearance or attire requirements during marriage from prenuptial agreements. Otherwise, the entire agreement is subject to being revoked.

Because of significant property, support, and marital rights encompassed within a prenuptial agreement, it is advisable to seek counsel to review a proposed agreement prior to signing. Parties considering a prenuptial agreement should know their rights and entitlements absent the terms of the agreement before agreeing to any modification or abridgement of those rights.