What is a prenuptial agreement?
A prenuptial agreement is a contract entered into between the parties in contemplation of marriage. This contract sets out the parties' economic and personal expectations in anticipation of the marriage.
Often these contracts provide for a predetermined division of assets,
whether or not alimony or another form of support will be paid and whether one or both parties shall be responsible for any attorney's fees associated with the termination of the marriage.
Presently approximately half of the states have adopted the Uniform Premarital Agreement Act. In those states that have not yet adopted the Uniform Premarital Agreement Act, one must look to more traditional contract law to determine whether or not a contract can be entered into between the parties.
In this regard the parties must both have capacity, that is, they both must be of legal age and have sufficient legal capacity to make a contract.
Also, both parties must fully and completely disclose the nature and extent of their respective assets so that neither can perpetrate a fraud on the other. Often, in situations where premarital agreements are ruled void or are set aside, it is because one of the parties has not completely disclosed the nature and extent of his or her property in an attempt to perpetrate a fraud on the other party.
Additionally, there can be no duress or coercion by one party on the other. Each party must have an opportunity to review the contract and to enter into the contract of their own free will.
Often, prenuptial agreements are ruled void because the prenuptial agreement was suddenly forced upon the would-be bride or groom on the way to the church without giving that individual an opportunity to make an informed choice of whether to sign the proposed agreement.
Whether the prenuptial agreement is controlled by the Uniform Premarital Agreement Act or common law contract requirements, the agreement must be in writing and must be signed by both parties.