A prenuptial agreement, sometimes called a prenuptial contract or a premarital agreement, is when a couple about to be married enters into a binding contract that legally defines their marital rights and obligations before they marry.
All States Now Permit Prenuptial Agreements
As of 2022, all 50 states recognize the legal validity of prenuptial agreements. Unfortunately, only a few states agree on a common body of acceptable terms and conditions that should be enforceable in such marital contracts.
Prenuptials Are No Longer For The Rich And Famous
Prenuptial contracts used to be associated with wealthy celebrities like Lee Marvin. Today, prenuptial agreements have grown in popularity among couples from different economic, social, and religious backgrounds.
Different Reasons Why Couples Enter Into Prenuptials:
Protection and Independence From State Marital and Property Laws
Couples generally enter into prenuptial agreements to avoid their own state’s marital and property laws – especially if the couple later decides to end their marriage. Specifically, state laws that govern property division and the right to seek alimony.
Partners Want To Make Their Own Decisions Regarding Their Marriage
Couples enter into a premarital agreement because they favor the independence and clarity that comes from such agreements. Couples say prenuptial gives them a sense of empowerment that comes with being the authors of their own marital rules.
With this empowerment, however, comes the need to be cooperative should the couple wish to modify the terms of their agreement later on.
Protection From The Other Spouse’s Debts
Prenuptial agreements can also be used to protect spouses from each other’s debts, such as the proverbial running-up of the credit cards before filing for divorce.
Protection From Other Spouse’s Children Inheriting Your Estate
A married couple with children from prior marriages can use a prenuptial to ensure that upon the death of a spouse, that spouse’s separate property will go to one’s own children in the amounts and types of property chosen by the decedent.
Protecting Your Separate Property During and After Marriage
If one party has a high-paying job, children from a prior marriage, or has already accumulated a lot of valuable property, a premarital agreement can protect one’s rights to that property and preserve the status quo should trouble in the marriage develop later, resulting in legal disputes between the parties and the parties divorce.
But what happens later on? Should the couple or one spouse want to modify their prenuptial agreement?
Modifying Or Challenging a Prenuptial Agreement
A prenuptial agreement is a binding and enforceable contract unless a court finds there is sufficient legal cause to modify or even void the agreement entirely.
Voluntary Modifications
A prenuptial agreement can be modified so long as both spouses agree to the modifications.
Modifying Your Contested Prenuptial – Changed Conditions
You may be able to legally modify your prenuptial agreement under the equitable principle of changed conditions. The conditions permitting modification of a prenuptial agreement will depend on your state’s law.
Most states require that the changed conditions must spring from an unanticipated change of circumstances.
Two common reasons for modifying an otherwise valid prenuptial agreement are an unanticipated change in the financial condition or when the spouses have children.
Other changes can include one of the spouses experiencing:
- severe and disabling personal injury
- financial hardship leading to bankruptcy
- financial hardship leading to foreclosure of their principal asset
- charged with a serious crime leading to a long imprisonment
Contested Prenuptials – Signed Under Duress
Whether a prenuptial agreement was signed under actual duress will involve both issues of law and facts. Many laws governing these legal issues will differ from state to state.
Signing any binding agreement, including a premarital agreement, under threat of violence clearly constitutes duress in any jurisdiction. However, the challenging issue to determine is what types of nonviolent threats are sufficiently credible to induce a state of extreme pressure in someone claiming they were forced to sign the prenuptial.
Generally, if one spouse claims they did not sign the agreement of their own free will or did not have the legal capacity or intention to enter into a binding contract, the court has the authority to render such a prenuptial void as a matter of law.
Shades of Duress
Being told by your fiancé that he will not go get married unless the other spouse agrees to enter into a premarital agreement is not generally considered duress.
On the other hand, if the threat was made one hour before the wedding, a court might consider this duress. The reasoning here is for one party to unexpectedly pull out a prenuptial agreement and demand the other party sign it, or there will be no one to marry.
Under these circumstances, most courts would likely conclude that actual duress existed.
Public Policy Favors Examining The Details Before Signing
A court’s legal finding of duress also serves as an important public policy. Specifically, people entering a prenuptial should have sufficient opportunity to study the document carefully and independently before being requested to sign it.
Accordingly, if the court concludes the prenuptial was signed under duress, the court will likely invalidate the prenuptial.
Unconscionable Prenuptial Agreements
The definition of unconscionable in a prenuptial agreement varies from state to state. In legal terms, the agreement must be perceived as so unfair and one-sided that it would shock the conscience of the reasonable person.
For example, a provision in a premarital agreement that limits support obligations after a divorce of two three-year-old children is considered both morally offensive and exceedingly unfair and would likely be unconscionable.
Unfair Does Not Always Mean Unconscionable
For a term or condition to be judged legally unconscionable, it must be more than just unfair. However, even if a judge thinks the prenuptial provisions are unfair, the judge might still enforce the prenuptial agreement so long as there is no credible evidence of:
- dishonesty
- fraud
- coercion
- deception
- concealment
For example, suppose the husband disclosed to the wife that he would soon receive a six-figure commission from his employer. Nevertheless, the wife earlier agreed in their prenuptial agreement that none of the husband’s income would be considered marital property. Under the facts of this case, a judge would be inclined to enforce that prenuptial agreement.
Marital Agreements Not Always In Writing
If your state does not require the agreement to be in writing, then an oral agreement will be enforceable. However, the spouse trying to enforce the prenuptial agreement must convincingly prove the oral agreement was supported by factual and credible circumstances, including independent and credible testimony of others who heard the couple make such an agreement.
These types of claims are usually challenging to prove in court.
Factual Question For a Judge or Jury To Decide
If there is a bonafide and factual dispute about what was said in the above example, the judge or jury must decide who is telling the truth.
People sometimes say, “It’s just your word against mine, so you can’t prove it.” Not true. If one spouse is believed against the word of the other, then the partner who is believed has proved their case.
Implied Prenuptial Agreements
If you did not make an express prenuptial agreement, you might still be able to prove that you made an implied one if the spouse challenging the prenuptial can establish how the parties conducted their financial affairs clearly demonstrated their intention to jointly share their property without conditions.
For example, if you and your partner opened a joint bank account, deposited your salaries into that account, and used the account to pay down the mortgage of the house you jointly owned, that would likely be enough for a judge to imply an agreement to share all of your income.
Domestic Partnerships
Most states have laws relating to domestic partners that give unmarried partners some of the same rights that married partners have. Also, some employers allow an unmarried partner to participate in a health plan or other benefits offered to the employee.
Divorce Lawyers
If you have questions about prenuptial agreements, consult a verified Divorce Lawyer for specific advice concerning your circumstances and available options as soon as possible.
