How Prenuptial Agreements Work in My State

Prenuptial agreements — often called prenups — are legal contracts used to address the division of a couple’s assets in the event of legal separation or divorce.

Couples can make agreements before (prenup) or after marriage (postnuptial). State laws will recognize and enforce agreements of either type, provided the contract meets the legal standards.

To make sure your documents are legally sound, consult with an experienced family lawyer.

Understanding Premarital Agreements

There are basic requirements for creating an enforceable prenuptial agreement, depending on state law. Basic legal requirements generally include:

• There must be “full and fair disclosure” of each prospective spouse’s earnings and property
• Each party must have an opportunity to consult with legal counsel of their choice

This means that one party cannot surprise the other with a prenup on their wedding day. A prenup is a legally binding contract and should be treated as such. Each partner has the right to have their own attorney review any antenuptial agreement proposed by the other partner.

In some states, where the prenup limits spousal support, each state must have independent legal counsel for enforceability.

The fair and full financial disclosure rule is further designed to prevent one partner from hiding marital assets. A valid prenup should include a list of each partner’s known assets, real estate, bank accounts, and income sources to avoid any misunderstanding.

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Postnuptial Agreements

A postnuptial agreement must meet the same requirements as a prenuptial agreement. However, some states will not enforce a postnup unless each party has independent legal representation. This is in contrast to an antenuptial agreement, where each partner must only have the opportunity to speak with their own lawyer.

Some states put a time restriction on filing postnuptial agreements. For example, in Minnesota, a postnuptial contract is presumed unenforceable if either spouse files for divorce within two years of signing the agreement.

Other states find postnuptial agreements contrary to public policy unless the couple enters into them as part of a legal separation or reconciliation agreement.

What a Prenup May and May Not Cover

In a divorce, a prenup can address a range of issues related to property division and finances during the separation. Issues include how to treat separate property each spouse owned prior to the marriage, how to divide marital property in the event of divorce, and whether to award alimony or spousal support.

One subject that a prenup cannot legally address is potential child custody or child support. Custody depends on the best interests of the child, not the parents. A prenup cannot determine child support because it belongs to the child.

In some cases, the court can refuse to enforce a prenup that is against public policy. The court may not enforce a prenup with unconscionable terms, leaving one spouse with no means of support.

Find Legal Help for Prenup Agreements

Before signing a prenuptial agreement, get legal advice from a local, experienced attorney. They can explain your legal options and make sure the legal contract protects your property rights and financial interests. If you have questions about the legal issues involved, visit the Super Lawyers directory to contact an experienced family law attorney.