Family Law

Requirements for Drafting a Prenuptial Agreement

By Lina Guillen, Attorney
Learn more about what a prenuptial agreement can cover and whether a court will enforce it.

What Is a Prenup and What Does It Cover?

A prenuptial agreement is a contract that allows both spouses to identify and protect their separate property, which includes:

  • property they owned or acquired before the marriage
  • property they purchased using funds they acquired before the marriage, and
  • property they acquired at any time by gift or inheritance.
Without a clear statement regarding how separate property will be treated during a marriage, the status of an asset may become unclear or mixed as a result of commingling cash or property.

A prenuptial agreement also allows both spouses to protect themselves from the other's debts, including those incurred before the marriage. And in some states, spouses may be able to set an amount of alimony in the event they divorce or one of them dies. However, all states have a prohibition on agreements that try to predetermine or waive child support obligations.

Prenuptial agreements can also address situations in which one partner leaves a secure and fulfilling job to live with a geographically distant spouse. If the marriage doesn't work out, is it fair to send the relocating spouse back home with nothing? Many people would say not. A prenuptial agreement is a good way to provide financial support to that spouse in the event the marriage ends.

Will a Judge Enforce a Prenup?

If one spouse tries to enforce a prenup or contest the validity of a prenuptial agreement in a divorce, a judge will review the agreement very carefully to make sure it meets all legal requirements. While the specific requirements vary a bit from state to state, here are some of the most common:

  • the contract must be in writing
  • the agreement must be fair (not unconscionable) at the time the court is asked to enforce it
  • each spouse's agreement to the contract must not have been obtained by coercion, threats, or while under duress
  • in some states, both parties must be represented by an attorney during the contract negotiations and drafting, and
  • the terms of the agreement must not go against public policy.

Getting Legal Help

Because a prenup is a complex legal document, which can have long-lasting financial consequences, it's best that both you and your future spouse each hire your own experienced family law attorney to help you prepare the agreement.

Lawyers are forbidden to talk to a party who is represented by another lawyer outside that lawyer's presence. However, if all four of you sit down together, there's no reason you can't engage in an open discussion about your options. In this kind of discussion, all four of you—both of you, and your lawyers—are free to speak directly with anyone else in the group.

Questions for Your Attorney

  • I have no major assets, do I still need a prenup?
  • Our wedding is in one week, and my fiance just asked me to sign a prenup I've never seen before. What should I do?
  • What do I have to disclose to my fiance before we sign off on a prenup?
  • Can my fiance and I agree in our prenup that neither one of us will have to pay child support?
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