A Prenuptial Agreement is an agreement entered into by two parties who may be about to become spouses, for the purpose of specifying what property belongs to what party. This agreement usually provide for a division of the couple’s property in the event of a divorce. Most frequently, one finds these types of agreements created prior to a second marriage, or where one party has a substantially larger number of assets than the other.

The Purpose

The purpose of such an agreement is to take the emotional issues out of dividing up the property at the end of a marriage, and to save money in legal fees by, in effect attempting to create a marital settlement agreement before the parties are ever even married and subsequently divorced.

The problem is that such agreements are not too popular when the institution of marriage is viewed. Couples take vows, which, in some religions, create a unity of two people into one "until death do us part." It is extraordinarily difficult for some people taking such vows to also take steps to plan for the event of a divorce.

Interestingly, in a purely legal and antiseptic manner, a prenuptial agreement is a great idea, and often does accomplish its purpose of dividing property after the marriage.

Common Provisions found in a Premarital Agreement

Some provisions placed into prenuptial agreements include the following [not an exhaustive list]:

• Agreement to keep each spouse’s income and property separate during the marriage;
• Agreement on child custody;
• Agreement on child visitation rights;
• Agreement on disposition of property after death;
• Agreement on sharing expenses and child care during the marriage;
• Agreement on property settlement after a divorce;
• Agreement about some activity, such as sex, household chores, recreation, and related items, during the marriage

Whether all of these items are enforceable can be a serious issue, and any resolution varies by state court. Experienced attorneys may be able to predict which of these provisions may not withstand state scrutiny, in the event of a challenge. As a very general rule, the provisions fixing the activities couples will engage in or refrain from once they are married can cause problems for courts, where they conflict with the state constitution, state laws and regulations.

When Do They Not Work?

As one might expect, several problems may arise during the marriage which present problems for the enforcement of the couple’s prenuptial agreement:

1. In many states, the courts will look at what is best for the children in the marriage, regardless of what the parties specified in their agreement. For example, if both parties agreed on joint custody which meant every other day, the court would have to examine these arrangements to determine if this “juggling” would negatively affect the children.
2. The parties, by their actions during the marriage, can actually serve to modify the agreement, sometimes unintentionally. Any contract, even one in writing, can be subsequently modified by the conduct of the parties. One requirement is that the parties intended their conduct to be a modification. Thus, the fact that one of the spouses took $2,000 per month from a previously specified separate bank account and paid it into the couples' bank account for three (3) years straight, could be taken to mean that the owner of the account was donating these funds to the marriage, and in fact, arguably intended the proceeds of the entire account to be deemed the property of the marriage. This may not be what the spouse intended, but one can see that the actions after the prenuptial agreement and the marriage may give rise to a serious argument that the spouse intended to donate these proceeds to the marriage.
3. Many spouses cannot resist the potential income, and despite the prenuptial agreement, will sue anyway to see if they can get more than the agreement provides, or to see if the other spouse will agree to settle the matter and pay more than the agreement provides.

Concern Area:

All such agreements rely on basic contract principles in many cases. The problem is compounded by the fact that many divorce courts are not contract courts, and the emotional issues charge the debates and place a huge emphasis on interpreting the contract if necessary. Make every effort to consult with an experienced attorney in drafting one of these documents. Contact member services to assist you with an attorney to prepare you with the tools you need to readily handle the emotional issues that may arise at the suggestion of a prenuptial agreement.