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What is a premarital agreement?

A premarital agreement is a written contract created by two people planning to be married. The agreement typically lists all of the property each person owns, as well as their debts, and it specifies what each person's property rights will be after they tie the knot. Premarital agreements often specify how property will be divided -- and whether spousal support (alimony) will be paid -- in the event of a divorce. In addition, an agreement may set out the couple's intentions about distributing property after one of them dies. (This is especially useful for second marriages when one or both spouses wants to preserve property for children or grandchildren from a former union.)

In some states, a premarital agreement is known as an "antenuptial agreement," or in slightly more modern terms, as a "prenuptial agreement" or "prenup."

Are premarital agreements legal?

As divorce and remarriage have become more prevalent, and with growing equality between the sexes, courts and legislatures are increasingly willing to uphold premarital agreements. Today, every state permits them, although a prenup that is judged unfair, that seems to promote divorce or that otherwise fails to meet state requirements will still be set aside. And courts won't uphold agreements of a non-monetary nature. For example, you can agree on how you will divide your property if you divorce, but you can't sue your spouse for failure to take out the garbage, even if your premarital agreement says that he or she must do so every Tuesday night.

Should my fiance and I make a premarital agreement?

Whether you should make a premarital agreement depends on your circumstances and on the two of you as individuals. Most premarital agreements are made by couples who want to circumvent the mandates of state law in the event of a divorce or at death. Often this happens when one partner has property that he or she wishes to keep if the marriage ends -- for example, a considerable income or a family business. Perhaps most frequently, premarital agreements are made by individuals who have children or grandchildren from prior marriages. The premarital agreement allows the partner to ensure that the bulk of his or her property passes to the children or grandchildren rather than to the current spouse.

Copyright © 2002 Nolo

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Disclaimer

This publication and the information included in it are not intended to serve as a substitute for consultation with an attorney. Specific legal issues, concerns and conditions always require the advice of appropriate legal professionals.

 




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