Premarital agreements are an important planning tool. When valid, these agreements allow a couple to decide what will happen to their finances and property if their marriage ends. A premarital agreement may address many issues, such as future spousal support and property division. Although state law dictates how these agreements are interpreted and whether they will be enforced, you can learn about the basic provisions in a general premarital agreement below.
Background Information and Recitals
Like many contracts, premarital agreements often contain basic background information. This information, sometimes called the “recitals,” explains the basics of who is signing the agreement and why.
Here are some examples of the type of background information often found in a premarital agreement:
- The names of the people who are planning to get married; and
- Why they are making the agreement.
The background information also often includes information designed to show that the contract complies with state law. Here are some examples of clauses that might be geared toward showing the legality of the agreement:
- That they wish to agree about how certain issues will be handled, should their marriage ever end;
- That they have each made a full and fair disclosure of their respective financial information, such as the property they own and the debts they owe;
- That they each believe the agreement to be fair;
- That each of them has had the chance to consult an independent lawyer before signing the agreement; and
- That each is signing the agreement voluntarily and has not been forced into the agreement.
- Most background information is usually included at or near the beginning of the document.
The “meat” of the premarital agreement is in its substantive provisions. These clauses are where the couple lays out how they want issues like the following to be treated:
- Who will own, manage, and control property during the marriage;
- How property will be disposed of should the marriage later end;
- How debts will be distributed if the marriage ends; and
- Whether spousal support (alimony) will be granted and, if so, how much and under what conditions.
The substantive part of a premarital agreement is the powerful part. Here, the couple can set forth how they want things handled if they later divorce rather than relying on a court to make those decisions for them. In many cases, state laws that dictate how property and debt will be distributed at divorce or death may be effectively overridden by a valid premarital agreement. For example, state law may say that property owned before the marriage is the separate property of each spouse. However, a couple may agree that a house the wife-to-be owned before marriage will now be owned by both of them and that they will both be liable on the home mortgage.
One notable exception to a couple’s ability to stray from state law relates to children. By law, every state requires major decisions about kids to be made in the “best interest” of the kids. Therefore, a couple cannot dictate who will get custody or how much child support might be if their marriage later ends. Although they may set forth their mutual wishes about these issues, the court will not follow those wishes unless the couple’s desires are in the best interest of the children.
Boilerplate clauses are the “standard” provisions in a contract. Although you may think “standard” provisions should go in any contract, that is not the case. Which boilerplate clauses go into any contract, including a prenuptial agreement, is a matter of legal judgment based on the laws of the applicable state. With that said, there are several boilerplate clauses that often show up in premarital agreements:
Attorney’s Fees Clause: This clause tells how the parties want to handle attorney’s fees if they later have to go to court over the premarital agreement. For example, they might agree that the loser pays the winner’s lawyer, or they might agree that they will each pay their own lawyers.
Choice of Law/Governing Law Clause: This clause tells which state’s law will be used to interpret or enforce the agreement.
Further Acts/Documentation Clause: In this clause, the couple agrees that they will each take any future acts necessary to effectuate their premarital agreement. For example, if they agreed that they would own a home jointly even though the wife-to-be owned it before marriage, the wife might be required to sign a deed to make this a reality.
Integration/Merger Clause: This clause says that any earlier agreements (spoken or written) are overridden by the final, signed agreement.
Modification/Amendment Clause: This part of the agreement explains what needs to happen to change the terms of the agreement. For example, it might provide that any future changes would need to be in writing and signed by both spouses.
Severability Clause: This clause says that if a court finds part of the agreement void, the couple wants the rest of it to be enforced.
Termination Clause: This part of the agreement describes whether the couple wants to allow the agreement to be terminated and, if so, how. For instance, it might say that the only way the agreement will end is if the parties agree to that in a signed writing.
Premarital agreements are subject to challenges based on state law, and state laws vary. For example, these agreements may be invalidated because one or both of the parties failed to make a full and fair disclosure of assets, because one of the partners did not have a true opportunity to consult with an independent lawyer, or because the agreement contains an illegal penalty clause. It is critical that you enlist the help of an experienced family lawyer in your state when you are ready to move forward with a prenuptial agreement. That is the only way to be sure that your wishes are carried out and that your agreement will be upheld by a court.