A contract made before marriage about property and support - enforceable in every state, and set aside more often than most people expect.
A prenuptial agreement, or premarital agreement, is a contract signed before marriage that sets out what will happen to property, debts and in most states spousal support if the marriage ends. A comparable agreement made after the wedding is a postnuptial agreement, and is generally held to a stricter standard because the parties are already married and no longer free to decline.
Such agreements are enforceable in every state, subject to conditions that vary and that are where the real content lies. Common requirements are that the agreement is in writing and signed; that it was entered into voluntarily, without duress; and that each party made a fair and reasonable disclosure of their property and obligations, or expressly and knowingly waived that disclosure. Many states additionally decline to enforce an agreement that was unconscionable when made, and some also examine whether it has become unconscionable by the time it is enforced.
Certain terms are outside what an agreement can do. Child support and custody cannot be fixed in advance in a way that binds a court, because those belong to the child rather than to the parents and are decided on the circumstances at the time. Terms purporting to regulate personal conduct within the marriage are generally unenforceable, and a provision that would leave a spouse dependent on public assistance may be set aside or limited even where the rest of the agreement stands.
Most agreements that fail do so on process rather than content. Signing shortly before a wedding, incomplete disclosure of assets, and one lawyer effectively acting for both are the recurring themes, and they are avoidable. Independent representation is not required in most states, but its absence is a factor courts weigh, and it is the cheapest available protection against the agreement being worth nothing at the only moment it matters.
This is an area where the value of a lawyer is measured by whether the document survives, and where doing it cheaply is the most reliable way to end up with nothing. Advice is worth taking where either party owns a business, a professional practice, an interest in a family company, or property that others also own; where there are children from an earlier relationship whose inheritance is meant to be protected; where the parties are likely to live in more than one state or one is not a US citizen, since which state's law applies is itself a term worth drafting; where substantial debt is being brought in; and in every case where an agreement is being presented close to the wedding, which is the single most common reason these agreements are later set aside. Each party having their own lawyer is not a sign of distrust in this context - it is the main thing that makes the document enforceable.
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