A prenup or premarital agreement is a contract between you and your perspective spouse. Why would you want to do this? You would want to do this if you had been married before and you had assets and children from a prior relationship and you wanted to protect those assets and you also wanted to provide for your children.
Another reason why you would want to do a premarital agreement or same thing as a prenup is if there is going to be a disparity in income or earning ability between the parties. Perhaps, you want to protect a family inheritance. You want to protect a family business. You want to clearly delineate your rights and responsibilities going into a marriage relationship.
A prenuptial agreement is enforceable as a contract so long as several requirements have met. One requirement is there needs to be full disclosure of all assets and liabilities going into the marriage relationship, because under contract law, you need to know what you are giving up or agreeing to. You need to be fully apprised.
The other factor that goes into a prenuptial agreement that makes it enforceable is conscionability. Was there any duress, was there any force, was there any arm twisting in going into signing this agreement. Other factors to consider are that a prenuptial agreement cannot contract away parenting rights and any provisions in a prenuptial agreement that relate to spousal support. In other words, alimony or maintenance are reviewed by the court on the basis of conscionability.
If it’s going to be totally unfair when the time comes to enforce it, the court might disregard those provisions. Same with attorney’s fees. If you do a waiver of attorney’s fees in a prenuptial agreement, the court does have the right to review that waiver along with a maintenance waiver for conscionability. The example that I would give is a long term marriage and I’ll just use the wife for example.
The wife waives maintenance and she becomes ill. Maybe she has breast cancer. She can’t work. She’s ill. Husband is very successful, business executive. He’s making six figures. Is it really fair for him not to pay her any maintenance in a long term marriage? In that situation, the court would say, “Probably not.” If you are contemplating getting married and you fall within that particular kind of situation where you’ve been married before, you’re older, you have assets or you want to clearly delineate your rights and responsibilities going into a marriage relationship, call me. Make an appointment, come in. It might be the best money you’ve ever spent.