A prenuptial agreement is an important tool when contemplating marriage, as it will determine what should happen in the event the marriage ends in death of one party or if the marriage ends in divorce. 

Preparing to create a prenup is one of the most honest conversations you can have with your future spouse because you’ll need to discuss what, if anything, you’d like to provide for each other in your estate plan if your marriage ends by a party’s death and how your assets should be split and what amount of alimony you’re entitled to if your marriage ends in divorce.  You will also have to disclose what your current assets and liabilities are to ensure that you each have a full understanding of one another’s finances. 

For a prenup to be enforceable a few things need to occur. 

First the prenup must be enforceable at the time of execution. For a judge to determine the agreement was enforceable at the time of execution they may consider:

  • Whether each party was informed of the other’s assets and liabilities
  • Whether each party was represented by independent counsel
  • Whether each party had an adequate amount of time to review the agreement
  • Whether both parties understand the terms of the agreement and the effect of such terms
  • Whether both parties understand their rights if no agreement were in place
  • That the agreement is fair and reasonable when signed

Next the prenup must be enforceable at the time of enforcement. This is often referred to as a “second look.” For a judge to determine the agreement is enforceable at the time of enforcement they consider: Whether the agreement is fair and reasonable at the time of enforcement, even if a judge might have ordered a different division if your divorce went to trial

A judge will likely not find the agreement to be valid if it strips a contesting spouse of all their rights.  Conversely, because competent adults have the right to enter into contracts, a judge cannot relieve a party of a valid agreement unless circumstances occurred during the marriage that necessitate deviation or enforcement would leave the contesting spouse without sufficient property, maintenance or employment to support themself.  If the judge finds the agreement enforceable at both the time of execution and enforcement, the provisions will be entered as provisions of the divorce agreement as the prenup will have been found to be a valid contract.

A prenup cannot make determinations such as a parenting plan or child support for your children.  All issues relative to children and child support must be determined at the time of divorce.

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