A pre-nuptial agreement is a private contract between the parties entered into prior to their marriage that outlines how assets and debts will be handled if the parties subsequently divorce. A basic and straight-forward pre-nuptial agreement could provide that each party retains anything they came into the marriage with as well as anything they acquire in their own name and that anything acquired jointly during the marriage will be divided equally or pursuant to their jurisdiction’s divorce laws. A pre-nuptial agreement can also be much more specific and detailed in how it addresses pre-marital and marital property, regardless of how it’s titled. An agreement may also address support for a spouse in addition to division of assets. For example, an agreement could provide for an increasing amount of support to a spouse based on the number of years married or number of children produced. It could also act as a waiver to any future support such that neither party could subsequently request any form of spousal support.
A pre-nuptial agreement is a form of contract and must meet several requirements to be valid. One, there must be a full and fair disclosure of the financial resources/existing assets by both parties. If there is not such a disclosure, there must be a provision in the agreement providing that the parties voluntarily and expressly waived the right to disclosure. Two, it must be clear that both parties voluntarily entered the agreement. For these reason, the agreement should be signed well before the wedding to avoid any challenge to the agreement that a party was under duress or felt forced to sign because the wedding date was fast approaching. Finally, steps should be taken to make sure the agreement is not invalidated on the basis of fraud or misrepresentation. Any challenge under the above listed causes of action will result in a fact-based analysis with the standard being a preponderance of the evidence, or more likely than not.