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Premarital agreements, or “pre-nups,” are often used to ensure that the separate property of one spouse remains separate (and not the joint property of the other spouse) so that children from a previous marriage or relationship can inherit it free and clear. Premarital agreements can also have a substantial impact on property division in a divorce.

Courts in years past would not enforce premarital agreements because it was thought that these agreements encouraged divorce. Now that close to 50% of all marriages in the United States end in divorce, most courts have taken a more realistic view and enforce prenuptial agreement provisions that concern property. Be sure to check the laws in your state to find out what you can include in a premarital agreement. Since much of the information is found in court decisions (case law), instead of in state statutes, you may want to consult an attorney if a substantial amount of property is involved.

Most states will enforce parts of a premarital agreement that deal with the division of property. In some states, a spouse can waive (or give up his or her right to) spousal support in a pre-nup, but this isn’t allowed in other states. Provisions regarding child custody, support, or visitation, however, are not binding on a court. By law, courts must always consider the best interests of the child first and foremost, and not the best interests or wishes of the parents.

See Premarital Agreements on the Free Advice Family Law page for more information.