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Effect of Premarital Agreements on Divorce

UPDATED: June 19, 2018

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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.

Enforcing Premarital Agreements

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.

Writing a Valid Premarital Agreement

In order to effect a divorce, a premarital agreement must be valid.  In order to be valid, the agreement must be in writing and signed by both parties, or else it is unenforceable.  Additionally, a court enforcing a premarital agreement will look to see if the contract was fair and made in good faith.  This means that both parties must have adequate time and opportunity to review the agreement and consult with an attorney, and both parties must fully disclose all of their assets that they own entering the marriage.  If a court finds anything suspicious about the circumstances of the premarital agreement, it can invalidate it.

Premarital agreements that waive the right of one parent to have custody or visitation rights to children may not be valid.  Typically premarital agreements can only cover property distribution, and not issues surrounding children.

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

Getting Legal Help

If you and your spouse would like to draft a premarital agreement, you should contact an attorney for assistance.  It may be advisable for each spouse to have separate attorneys to ensure the premarital agreement is fair and valid.  If you would like to contest the validity of a premarital agreement during a divorce, you will need the assistance of an experienced family law lawyer.

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