A premarital agreement is a written agreement between prospective spouses made in contemplation of and to be effective upon their marriage. Premarital agreements are becoming increasingly common, especially when parties have children from prior relationships or when one spouse is employed by or owns a family-run business.
With a Premarital Agreement, Parties may Enter a Contract with Respect to the Following:
- The rights and obligations of each of the parties in any of the property of either or both of them, whenever and wherever acquired or located;
- The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
- The disposition of property upon separation, marital dissolution, death, or the occurrence or non-occurrence of any other event;
- The making of a will, trust or other arrangements to carry out the provisions of the agreement;
- The ownership rights in and disposition of the death benefit from a life insurance policy;
- The choice of law (e.g., the state) governing the construction of the agreement;
- Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
In addition, a premarital agreement may limit a spouse’s right to future spousal support. However, support limitations and waivers are complex and must be carefully drafted. In fact, any provision in a premarital agreement regarding spousal support is unenforceable if the party against whom enforcement of the spousal support provision is sought was not represented by independent counsel at the time the agreement containing the provision was signed, or if the provision regarding spousal support is unconscionable at the time of enforcement. Also, an otherwise unenforceable provision in a premarital agreement regarding spousal support may not become enforceable solely because the party against whom enforcement is sought was represented by independent counsel.
If you are contemplating a premarital agreement, it is important that you do so well in advance of the intended date of marriage. A premarital agreement that is signed too close to the date of the marriage may be difficult to enforce, and if the agreement is not signed within a certain prescribed time, it will be, by law, ineffective.