Prenuptial (Antenuptial) Agreements

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Prenuptial (antenuptial) agreements allow a husband and wife to agree, prior to marriage, how marital property should be inherited upon death as well as how their property should be divided and what maintenance (alimony), if any, should be paid, if they are divorced. 

Prenuptial agreements must be in writing and signed by the spouse to be enforced against to be valid.  However, if a verbal prenuptial agreement was created prior to marriage, it might be made valid by the creation and signing of a written agreement after marriage.

Complete disclosure of property and debts is required in order for a prenuptial agreement to be valid.  If, for example, a husband falsely understates his wealth, he may find that his wife is not bound to the agreement he mislead her into signing.  The standards for disclosure may vary depending on the education and experience of the spouses.

It is important to realize that the laws regarding enforceability will vary from state to state.  If the prenuptial agreement says which state’s law should apply, it generally will, unless the parties were not married in, nor ever lived, in that state.  If the agreement fails to mention which states law applies it will be either the law of the state with the most significant connection to the spouses or, in some cases, the state where the prenuptial agreement was signed that will apply.

The enforceability of the prenuptial agreement will vary by state as follows.  Generally all states permit a prenuptial agreement to control how a spouse’s property will be inherited upon death.  Differences in enforceability arise when the prenuptial agreement attempts to dictate the amount of alimony or maintenance that will be paid upon divorce.

Prior to 1970 nearly all states held such a provision to be unenforceable (some states would find the entire agreement unenforceable and others will merely delete the unenforceable sections). 

Since 1970 most states have changed their law to allow prenuptial (antenuptial) agreements to set forth alimony or maintenance to be paid upon divorce (Including: California, Colorado, Connecticut, District of Columbia, Florida, Georgia, Illinois, Maryland, Massachusetts, Nevada, New Jersey, Ohio, Oregon, Virginia).  Other states have rejected this (Iowa, Kentucky).  Note that most states that do allow these agreements will still generally require that the agreement have some reasonable provision for the spouse.

By Christopher Yannon

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