Bauer Family Law - Prenuptial Agreement
From Wikipedia, the encyclopedia
A prenuptial agreement or antenuptial agreement, commonly abbreviated to prenup or prenupt, is a
contract entered into by two people prior to marriage or civil union. The content of a prenuptial
agreement can vary widely, but commonly includes provisions for the division of property should the
couple divorce and any rights to spousal support during or after the dissolution of marriage.
There are two types of prenuptial agreements: marriage contract for people who are married or about to
be married, and cohabitation agreement for unmarried couples.
Laws around the world vary in their recognition of such agreements.
Historically, judges in the United States frowned upon prenuptial agreements as corrupting what
marriage was supposed to stand for, and often they would not recognize them. Nowadays they are
recognized, although they may not always be enforced. It is common to have legal advice to the effect
that both parties should have lawyers present during the signing, for a judge to ensure that neither party
has been coerced into the agreement.
Prenuptial agreements are, at best, a partial solution to obviating some of the risks of marital property
disputes in times of divorce. They are not the final word.
In the United States, prenuptial agreements are recognized in all fifty states and the District of
Columbia. Likewise, in all jurisdictions, five elements are required for a valid prenuptial agreement:
- agreement must be in writing (oral prenups are always prohibited);
- must be executed voluntarily;
- full disclosure and/or fair at the time of execution;
- the agreement can’t be unconscionable;
- it must be executed by both parties (not their attorneys) "in the manner required for a deed to be
recorded", known as an acknowledgement, before a notary public.
Of note, unlike all other contract law, consideration is not required, although a minority of courts point to
the marriage itself as the consideration. Through a prenup, a spouse can completely waive rights to
property, alimony or inheritance as well as the elective share and get nothing in return.
A sunset provision may be inserted into a prenuptial agreement, specifying that after a certain amount of
time, the agreement will expire. In a few states, such as Maine, the agreement will automatically lapse
after the birth of a child, unless the parties renew the agreement. In other states, a certain number of
years of marriage will cause a prenuptial agreement to lapse. In states that have adopted the UPAA
(Uniform Prenuptial Agreement Act), no sunset provision is provided by statute, but one could be
privately contracted for.
Prenuptial agreements are a matter of civil law, so Catholic canon law does not rule them out in
principle (for example, to determine how property would be divided among the children of a prior
marriage upon the death of one spouse).
In practice, prenuptials may run afoul of Church law in a number of ways. For example, they cannot
subject a marriage to a condition concerning the future (such as an agreement about the dividing of
assets in case of divorce). The Code of Canon Law provides: "A marriage subject to a condition about
the future cannot be contracted validly." (CIC 1102)
The Canon Law: Letter and Spirit, a commentary on canon law, explains that condition may be defined
as "a stipulation by which an agreement is made contingent upon the verification or fulfillment of some
circumstance or event that is not yet certain." It goes on to state that "any condition concerning the future
attached to matrimonial consent renders marriage invalid." For example, a marriage would be invalid if
the parties stipulated that they must have children or they have the right to divorce and remarry someone
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