Prenups: What They Can and Cannot Protect

In February 2010, Harris Interactive conducted a poll for USA Today on the opinion of adults in the United States regarding prenuptial agreements. Among other things, the poll found that 4% of married people have a prenup. In Texas and Florida, which reported divorce rates higher than most other states in 2009, not having a prenup could be especially costly.

The Uniform Law Commissioners (ULC) announced the Uniform Premarital Agreement Act (UPAA) in 1983. A premarital or prenuptial agreement is "an agreement between spouses made in contemplation of marriage and to be effective upon marriage." According to the Act, these agreements must be in writing and signed by both parties. The adoption of the UPAA by a state allows couples to enter into valid premarital agreements.

Texas and Florida have adopted the UPAA along with more than half of the United States. According to the ULC website, Mississippi, South Carolina, Missouri, and West Virginia have pending legislation.

What a Prenuptial Agreement Can Protect

A prenup can protect the rights and obligations of both parties with respect to property. If one party owned a house before marriage, the prenup could include a provision stating that this spouse would be responsible for all costs associated with the maintenance of that property.

It can also protect the right to conduct any known transaction concerning property. The prenup could state that a spouse who owned a beach cottage would retain the sole right to sell or lease the property, but the other spouse had the right to use the house and live in it during the summer.

A prenuptial agreement can outline disposition of property if the marriage ends upon separation, death, or the occurrence of another event. A provision could state that if one spouse admits to cheating on the other, a cash payment of a certain amount is made to a certain bank account.

A prenup can also decide which jurisdiction’s law would be used to interpret the agreement and where any legal proceedings would be held.

Many other matters, including personal rights and obligations can also be included. This can include where the couple will live, the freedom to pursue career opportunities, and how they will raise any children.

What a Prenuptial Agreement Cannot Protect

Prenups cannot contain provisions violating public policy or a criminal law.

Spousal support obligations vary by state. Both parties may waive the right spousal support. Depending upon the state, spousal support provisions may or may not be upheld in court. An otherwise valid agreement might be set aside if provisions make a spouse eligible for welfare. A court may require spousal support to the extent necessary to take that spouse off welfare.

Child support cannot be determined in a prenup. The court will follow state guidelines.

The issues of fairness and disclosure are key if a court is required to rule on the enforceability of a prenup. Both parties must have entered into the agreement voluntarily. Parties must fairly and reasonably disclose all property and financial obligations. If not, that property may not be protected by the agreement.

Do I Need a Prenup?

Prenups are not romantic. A couple on the brink of marriage may not want to consider that their marriage could end one day. However, reality says otherwise. The Harris Poll found that 15% of divorced Americans regretted not having a prenup. Taking steps to protect assets now could save time and additional heartbreak in the future.

LegalZoom may be able to help with your prenup and/or prenuptial review.

Sources:

Harris Interactive: USA Today Prenup Data: March 1, 2010.

Tejada-Vera B, Sutton PD. Births, marriages, divorces, and deaths: Provisional data for August 2009. National vital statistics reports; vol 58, no 18. Hyattsville, MD: National Center for Health Statistics. 2010.

Summary: Uniform Premarital Agreement Act

Text: Uniform Premarital Agreement Act