Prenuptial agreements are agreements between prospective spouses made in preparation of marriage. In marriage, each person has certain legals rights, such as property rights or spousal support (aka alimony). In order to modify these legal rights, the prenuptial agreement is used, which results in a person giving up certain rights which they would otherwise have acquired by reason of the marriage. Courts are increasingly recognizing prenuptial agreements due to rising incidence of divorce and remarriage.
It's A Contract Just In Case the Marriage Winds Up In Divorce
Prenuptial agreements are like contracts. And like any contract, a prenuptial agreement must be in writing and signed. It is very important to use an attorney to draw up a prenuptial agreement because problems arise when things are not specifically and carefully spelled out. For example, where a husband and wife enter into a prenuptial agreement that says: “wife agrees to waive all rights that she would otherwise be entitled to because of such marriage; and she waives any right to all property.” In this case, if the wife seeks alimony, the husband will have a problem if he tries to enforce the prenuptial agreement because it does not clearly state “no alimony,” although the prenup does clearly state a waiver of any right to property.
A common agreement in a prenuptial agreement is the amount of spousal support (i.e., in the event of divorce, wife gets $2,000/month alimony and medical insurance for life or until she remarries). In some states such as California, parties can even agree to a waiver of alimony, so in the event of divorce, no alimony will be paid.
Child Custody & Support Cannot Be Included in Prenup — Ever
One thing parties may not agree to in a prenuptial agreement is with regard to child support or child custody. Because the state has a strong interest in child welfare, the right of a child to support may not be adversely affected by a prenuptial agreement and is therefore not allowed.
The Prenuptial Agreement Must Hold Up In Court – Read On!
Signing a prenuptial agreement is only half of it. The other half is whether the agreement is valid. A prenuptial agreement is valid if it provides full disclosure; it is fair and reasonable; and was entered into voluntarily by both parties (no fraud, no duress). Sometimes however, courts will enforce a prenuptial agreement that may be unfair so long as there was full disclosure. Because things are NEVER black and white, it is so very important to use a lawyer to prepare your prenuptial agreement or you may find yourself fighting a losing battle in the gray areas. I also highly advise using a lawyer to review a prenuptial agreement if you have been asked to sign one.
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