What are the key elements necessary for a valid prenuptial agreement?

The requirements for a valid pre-marital agreement vary by state. In general, a pre-marital agreement, or pre-nuptual agreement, is a contract and all laws governing the creation of a contract apply.

Because it is a contract made in consideration of marriage, a pre-nuptial agreement must also be created in writing and must be signed by both parties. You will need to be aware of the additional requirements of your jurisdiction if you wish to create a pre-marital agreement that will hold up in court in the event of a divorce.

How can I ensure that my pre-marital agreement is valid?

While the rules may differ from place to place, generally, a valid premarital agreement must:

  • Be signed by both parties
  • Allow time for each party to review the document and, if desired, get legal advice
  • Be created under full disclosure of the assets and incomes of each party (In some cases, this disclosure can be waived in writing.)
  • Be free of duress or coercion
  • Be in writing
  • Be signed in the presence of witnesses.

There may also be limitations on the types of terms that will be enforced. For example, child support may not be able to be waived in a pre-marital agreement because the right of support belongs to the child and because it is sound public policy to require all parents to support their minor children.

How can I protect my rights?

In order to make sure that your legal rights are protected and that your pre-marital agreement is enforced, it is always best to err on the side of caution. For example, have the agreement signed and notarized, even if a notary isn't required, so there can be no question of fraud. Keep the agreement in a safe place after it is signed. To make sure everything is in order, you should strongly consider having a lawyer review the agreement both before it is written and after it is signed.