Pre-marital (sometimes called prenuptial) agreements are a great way to negotiate the financial terms of the relationship between you and your partner both during the marriage and after, rather than leaving everything to the rules imposed by the State. Some issues, such as child custody and child support can’t be negotiated outside of the court’s authority because those are issues that, as a matter of public policy, are not allowed to be changed by the parties from what the law provides. Many people put such provisions into a pre-marital agreement, but provisions impacting custody and child support are generally not enforceable, but most everything else is negotiable and enforceable.
If you and your partner are willing to provide full disclosure of your financial situation (which is a good idea in any event when entering into a marriage), a pre-marital agreement (often referred to as a “prenup”) can help you provide for predictability and stability in addressing your finances throughout the marriage and even after the marriage should the marriage not last.
To be enforceable, a prenuptial agreement must be executed voluntarily. It must also be in writing and signed by both parties. Prior to the signing of the agreement, there should be full disclosure of property and financial obligations.
If you retain an attorney to draft a prenup, however, your partner should also be represented by an attorney or waive the option of seeking the advice of an attorney. The party without counsel must be informed of the terms of the agreement and understand the rights surrendered by entering into the agreement. This will make the agreement more enforceable should the need to do so later arise (usually in the context of a divorce).
A premarital agreement is generally unconscionable and unenforceable against a spouse who did not receive full and fair disclosure of the other spouse’s property and financial obligations. If a court finds an agreement to be unconscionable, it might not enforce its provisions, which of course will severely undercut the purposes of the agreement, so it is best to do all you can to ensure the agreement’s enforceability, otherwise, why do it at all?
Even if a prenup isn’t invalidated or found unconscionable, it may be too ineffectively worded to be much use when it’s most needed. These are very detailed and complicated agreements and there are many pitfalls for the untrained or unwary. Experienced attorneys can help frame an agreement that will not only hold up in court but will protect both of you. The freedom to negotiate your own terms doesn’t mean you should forego the expertise of people who can ensure the best terms for years to come.