(US family law and generally) Every year nearly 2.3 million Americans get married, with nearly half of them culminating in divorce. This statistics concerning national divorce rates reveal that the likelihood of a breakup in marriages exceeds an incredible 50 percent. So it is not at all surprising that the extensive use of prenuptial agreements is ever on the rise.
Nature of a Prenuptial Agreement
Any prenuptial agreement is drawn up either before or while contemplating marriage. Such an agreement essentially divulges the assets as well as debts of both parties, and spells out just what happens to these either upon the death of a partner or if the divorce of the parties. When people are engaged to be married, their relationship becomes fiduciary in nature, and as such both partners have a duty to reveal assets and income. If they fail in this, the prenuptial agreement becomes null and void.
A Peep into History
Although it is a fairly common practice these days, courts previously subscribed to the idea that it negates public policy to afford a monetary settlement if a marriage ends up in either a separation or divorce. The principal reason for this factor was that an agreement to this effect would be undermining the conjugal relationship in advance and as such can encourage marital breakups.
Full Financial Disclosure
Total fiscal disclosure is indispensable. It must be kept in mind that requesting a prenuptial agreement can be interpreted by your future spouse as you having no trust in them. If you are being deceitful about your finances, you are only giving them plenty of ammunition to attack you. The basis of a legitimate premarital agreement is the need for disclosure. Without ample disclosure it is not easy to draft a binding contract, particularly if material facts are concealed. Thus, the way to guarantee the legality of the prenuptial agreement is to exchange prevailing net worth statements, which requires detailing assets as well as liabilities. Prenuptial agreements are in effect a sincere effort to decide issues such as distribution of wealth, division of property, support, etc. in the event of the demise of either of the spouses or the breakdown of the marriage that ends in separation or divorce.
Statute of Frauds
The Statute of Frauds requires that an agreement entered into in consideration of either marriage or a pledge to marry must be in writing and duly signed by both spouses.
Consideration is an indispensable factor of an agreement. In case sufficient consideration is lacking, an agreement becomes invalid. In the marital sphere, the reciprocal promises to enter into wedlock serve as sufficient consideration.
Any premarital agreement deemed unfair cannot be enforced if it is considered “unconscionable.” Courts tend to investigate an agreement that favors one spouse or the other in a lopsided manner on its own merits or demerits. Additionally, persons and conditions change, so that a contract that might seem fair at first becomes less so with the passage of time. Unconscionability is put to the test based on when the prenuptial agreement is enforced, not when it was signed, since enforcing an out-of-date agreement blindly can end in unforeseen financial hardship for the affected spouse.
To have common counsel in the drafting and reviewing of the proposed prenuptial agreement can be problematic. To safeguard the interests of either party, both parties should have separate counsel.
The last major point concerning the execution of the agreement is that it should be accomplished without duress. Sometimes the agreement is entered into on the eve of marriage, or even on the day of the wedding itself. Actually, a reasonable amount of time should pass after the signing of the agreement and the important day.
A good divorce lawyer will advise you to add a “triggering event” to the agreement that would kick start divorce proceedings automatically, while distinguishing between separate and marital property as of that date. This can come in handy, mainly if your prenuptial agreement is based on offering your partner a portion of your estate at a time when you are looking forward to some future earnings, inheritance, etc.
As the circumstances of every individual are unique, prenuptial agreements as a rule do not undergo standardization. Instead, they are specially drawn up to suit the specific requirements of both parties. Besides, such agreements do not necessarily remain ironclad unless they are properly structured.
About the author
Jonathan Ryerson is a freelance legal writer who focuses on Domestic Violence, Criminal Defense, Family Law, Mediation, DUI Defense and other topics.