Pre-nuptial agreements are contracts made before the marriage, which spell out in advance the rights and obligations of the parties in the event of a divorce. They are generally used when one spouse has vastly more assets or income than the other or an expectation of a large inheritance. Additionally are sometimes used in second marriages in to insure the estate will go to the adult children of the first marriage and not the second spouse.
From a property standpoint the agreement seeks to insure that the non-marital property of one spouse does not get distributed, in whole or in part to the other spouse, in the event of a divorce. From a support standpoint, the spouse to be with the larger income wishes to limit his (or her under appropriate circumstances) alimony obligation to the other that might arise in a divorce.
These agreements are sometimes tricky to negotiate. First be aware that there is no “standard" agreement. Second remember that the parties are in love and looking forward to marriage and yet they have lawyers already negotiating what happens in the event of a divorce.
The most important thing about these agreements, from the “rich" spouse’s point of view, is to insure they are enforceable. There is a large body of law dealing with assertions that such agreements can be set aside as unenforceable for one reason or another. Some important considerations are whether or not there has been accurate financial disclosure. As adults parties are able to enter into enforceable contacts. These contracts may waive support and/or property interests however that waiver must be made knowingly and voluntarily. Accordingly, full, complete and accurate disclosure must be made of all income and assets and property interests. Otherwise litigation may be brought later and assert that the pre-nuptial agreement should be set aside because inadequate financial disclosure was not made. Other grounds may be raised regarding the enforceability of the contracts such as whether or not each party had their own independent counsel, was the agreement sprung on the other spouse just before the marriage and after the invitations went out and other considerations. It is important to consult with an experienced family law attorney when considering entering into a pre-nuptial agreement.