What are prenuptial agreements?
Premarital agreements (also called "pre-nuptial" or "ante-nuptial agreements") are binding contracts between you and the person you intend to marry. Believe it or not, premarital agreements were originally used to protect the dowry and other possessions of women. Prior to New York's Married Women’s Property Act of 1848, a woman's entire property typically passed to her husband on their wedding day. This meant that if her husband died or divorced her, she could lose all of her property and be completely penniless. To prevent this, families would draft premarital agreements detailing specifically which property would remain in the possession of the bride’s family should the unthinkable happen.
Modern Premarital Agreements
Among the more modern reasons people have for drafting premarital agreements is to ensure that their assets remain in their possession in the event that the marriage fails. In addition, a premarital agreement can ensure that assets, or at least a large portion of them, go to a person's children after death; a pre-nuptial agreement can also help to prepare a couple for matters that may become problems after the marriage. For some, a premarital agreement is a smart and practical way to acknowledge the fact that nearly half of all marriages end in divorce.
Another practical use for premarital agreements is to aid couples in clearly communicating their expectations for one another during the marriage. For instance, a husband or wife may expect his or her spouse to stay home with their children instead of pursuing a career. This expectation can be clearly stated in the premarital agreement. Or, one spouse may desire that the other be limited in how much he or she can can travel alone, this can also be laid out in the premarital contract.
Drafting a Premarital Agreement
If you and your fiancé wish to draft a premarital agreement there are a few things that should always be done. You should discuss the agreement before your wedding day. Ideally, this agreement should be signed a few months before the wedding in case the draft of the agreement ruffles too many feathers and you need to call off the marriage. This is especially important for procrastinators to remember as the courts will typically not honor premarital agreements that are signed under duress, such as minutes before you two walk down the aisle.
You should also be completely honest about your assets, liabilities, and expectations in the agreement. An agreement based on a material misrepresentation is usually not valid. And finally, you should each hire separate attorneys to review the premarital agreement on your behalf - one lawyer can not represent both of you. Ask each lawyer to provide an affidavit that s/he has been one party's independent legal counsel. Should the validity of the agreement ever be challenged, this may be essential, as otherwise the entire agreement may be thrown out.