What is a Prenuptial Agreement

What is a Prenuptial Agreement

A prenuptial agreement is a contract between two persons planning to marry that determines the rights they have to each other's property. You may also see them called antenuptial agreements, or premarital agreements. Prenuptial agreements are used to control how property will be divided in the event of divorce or the death of one of the spouses.

Most people do not fully appreciate the legal rights and obligations that are created when they marry. The legal aspects are often overlooked until it comes time for divorce. Then they find out that marriage is easy to get into, but difficult to get out of. The death of a spouse can also cause various problems with the couple's property.

When you get married, the law gives you and your spouse certain rights in each other's property. This includes property you acquire during your marriage, and may include property you acquired before you got married. The law also has provisions for how this property is handled in the event of divorce or death.

A prenuptial agreement might be considered a will for the death of a marriage (either due to actual death or to divorce). Just as a will can be used to avoid some of the hassles of probate, a prenuptial agreement can be used to avoid some of the hassles of divorce (and probate). Actually, everyone already has a will and a prenuptial agreement through the law. These are the probate and divorce laws, which can be viewed as the will and prenuptial agreement the state writes for you if you do not write your own. The divorce laws and the probate laws of your state give guidelines for the judge to follow in determining how property should be divided or distributed. By using a prenuptial agreement, you and your spouse can write your own guidelines to be used instead of your state's laws.

For a long time, many courts would not enforce prenuptial agreements. The law has traditionally favored marriage. In the minds of lawmakers and judges, a prenuptial agreement seemed to encourage divorce, so the lawmakers would not approve them and the judges would not enforce them. However, with the simplified divorce procedures and high divorce rate in more modern times, lawmakers and judges finally came to accept reality. Every state's laws now allow for prenuptial agreements.

Some people even include non-financial rights and responsibilities, as specific as who takes out the garbage and who does the dishes. However, since these types of agreements will not usually be enforced by the courts, they are better left out of the prenuptial agreement. If desired, these types of provisions should be part of a separate agreement that is just used to remind the husband and wife of their rights and responsibilities when disagreements arise.