The Prenuptial Agreement and its limits

Definition

A prenuptial agreement, commonly abbreviated to prenup or prenupt, is a contract entered into by two people prior to marriage or civil union. The content of a prenuptial agreement can vary widely, but commonly includes provisions for the division of property should the couple divorce and any rights to spousal support during or after the dissolution of marriage.

Types of prenups

There are two types of prenuptial agreement: marriage contract for people who are married or about to be married, and cohabitation agreement for unmarried couples.

Legal recognition in the USA

In the United States, prenuptial agreements are recognized in all fifty states and the District of Columbia. Likewise, in all jurisdictions, five elements are required for a valid prenuptial agreement:

1. The agreement must be in writing (oral prenups are always invalid).

2. The agreement must be executed voluntarily.

3. The agreement must consist of full disclosure and be fair at the time of execution.

4. The agreement can’t be unconscionable.

5. The agreement must be executed by both parties (not their attorneys) "in the manner required for a deed to be recorded", known as an acknowledgement, before a Notary Public.

Of note, unlike all other contract law, consideration is not required, although a minority of courts point to the marriage itself as the consideration. Through a prenup, a spouse can completely waive rights to property, alimony or inheritance as well as the elective share and get nothing in return.

A sunset provision may be inserted into a prenuptial agreement, specifying that after a certain amount of time, the agreement will expire. In a few states, such as Maine, the agreement will automatically lapse after the birth of a child, unless the parties renew the agreement. In other states, a certain number of years of marriage will cause a prenuptial agreement to lapse. In states that have adopted the UPAA (Uniform Prenuptial Agreement Act), no sunset provision is provided by statute, but one could be privately contracted for.

There is no enforcement of any prenuptial provision that would give less than what would be provided to a child by the court for child support purposes. Prenuptials are thus incapable of affecting what a child would receive via child support from the non-custodial parent.

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