A prenuptial agreement is a contract entered into prior to marriage, civil union or any other agreement prior to the main agreement by the people intending to marry or contract with each other. The stipulations can vary widely, but it is undoubtedly the most important part of an agreement that engaged couples want to include in their marriage documents.
Both parties should have lawyers represent them to ensure that the agreement is enforceable. In some cases, the parties retain a private judge to be present during the signing, to be sure that neither party has been coerced into the agreement. Some attorneys recommend videotaping the signing, although this is optional. Some states such as California require that the parties be represented by counsel if spousal support (alimony) is limited by the agreement.
Prenuptial agreements are, at best, a partial solution to obviating some of the risks of marital property disputes in times of divorce. They protect minimal assets and are not the final word. Nevertheless, they can be very powerful and limit parties’ property rights and alimony. It may be impossible to set aside a properly drafted and executed prenup. A prenup can dictate not only what happens if the parties divorce, but also what happens when they die. They can act as a contract to make a will and/or eliminate all your rights to property, probate homestead, probate allowance, right to take as a predetermined heir, and the right to act as an executor and administrator of your spouse’s estate.
A prenuptial agreement is only valid if it is completed prior to marriage. After a couple is married, they may draw up a post-nuptial agreement.
In the United States, prenuptial agreements are recognized in all fifty states and the District of Columbia. Likewise, in most jurisdictions, five elements are required for a valid prenuptial agreement:
- agreement must be in writing (oral prenups are generally unenforceable);
- must be executed voluntarily;
- full and/or fair disclosure at the time of execution;
- the agreement cannot be unconscionable;
- it must be executed by both parties (not their attorneys) “in the manner required for a deed to be recorded”, known as an acknowledgment, before a notary public.
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