Questions About Prenuptial Agreements
My partner and I plan to get married next week. We want a written agreement to determine the ownership of our assets and responsibility for debt after marriage. Can you prepare an agreement for us?
Unfortunately, not. There is not enough time to prepare a prenuptial agreement that will be enforced by the court. Prenuptial agreements must be prepared with precision to be enforceable by a court. If, as in most situations, the agreement is substantively unfair to the spouse not seeking enforcement, the court determines whether the agreement is procedurally fair by asking two questions: (1) whether the spouses made a full disclosure of the amount, character, and value of the property involved and (2) whether the agreement was freely entered into on independent advice from counsel with full knowledge both spouses of their rights.
If the process of preparing a prenuptial agreement is near the wedding date, the disadvantaged party may feel coerced or pressured into signing the agreement. It may also be difficult for the parties to make a full disclosure of their assets and debt, or for the disadvantaged party to seek legal counsel to review a draft of the agreement prior to the wedding date.
What content can be included in a prenuptial agreement?
A prenuptial agreement can address not only how a division of property or debt should be made in case of legal separation or divorce, but it can include other provisions as well, including matters regarding whether the parties should maintain joint bank accounts for common expenses, how income should be treated during the marriage, whether the advantaged party should pay maintenance (alimony) to the other spouse, requiring the purchase of life insurance, or how property should be characterized (whether community or separate).
If it’s too close to the wedding for us to reach a prenuptial agreement, what are my options?
You can get married and decide not to do anything, or you can decide to prepare a postnuptial agreement. A basic rule of contract law is that every contract requires an offer, acceptance of that offer, and consideration. Consideration in a typical contract or agreement is often money. In a prenuptial agreement, the future marriage is treated as “consideration” for entering into the agreement. In a postnuptial agreement, since the parties are already married the contract needs another basis for “consideration.” This could include financial support or assistance upon a legal separation or divorce.