What is a Prenuptial Agreement

Prenuptial agreements have been made popular by celebrity prenups that include outlandish requirements such as no mother-in-law sleepovers, only one football game per Sunday, a weight limit for the wife, and the extent of physical intimacy. But prenups aren't just for celebrities with huge fortunes to protect. They serve as a safety net for both partners, so that neither has to pick up the pieces as well as struggle to make ends meet.

A prenuptial agreement, alternately called an antenuptial agreement, or a premarital agreement, is a written agreement between a couple prior to their wedding or civil union. While the prenuptial agreement usually addresses the distribution of the financial assets and spousal support, it can contain a variety of clauses, including a 'confidentiality clause' that many celebrity prenups include. These provisions get implemented if the marriage ends in divorce. Two types of prenuptial agreements exist. One is a contract for people who are married or about to be married, and the other is a cohabitation agreement for unmarried couples living together. Those who do not get a prenup before getting married, but later rethink that decision, can get a postnuptial agreement or postmarital agreement.

In the US, a prenuptial agreement is not mandatory, and is drawn up if the couple wants one. However, it is recognized in all fifty states as well as the District of Columbia. In order for a prenup to be a legally binding document, in most jurisdictions it needs to prescribe to these five elements:

• The prenuptial agreement needs to be in writing
• The agreement must be executed voluntarily by both parties
• There should be full and/or fair disclosure by both parties at the time of execution
• The agreement cannot be unconscionable, and
• It needs to be executed by both parties (not their attorneys) "in the manner required for a deed to be recorded", known as an acknowledgment, before a notary public.

One area that couples are not allowed to decide about in advance is children. Issues that are sometimes the most difficult to resolve during a divorce, pertaining to custody and access of the children, cannot be regulated in a prenuptial agreement. This is done to protect the interest of the children, as it is only at the time of divorce, taking all circumstances into consideration can it be decided what is best for a child.

The procedure routinely followed is for the couple to present a premarital agreement for review and then wait seven days before they sign it. However, there is no regulation about the number of days prior to the marriage within which this procedure needs to be completed. Prenups may also take many months to draw up, and so even though most people feel that they kill the romance, this job should not be left to be done at the last minute.

In most cases, courts uphold and enforce all the financial clauses ancillary to divorce. However, the duty of the court is to uphold that which is fair and just, and thus it may not enforce a clause that opposes these values. In one such case, the Appellate Division in New Jersey refused to enforce a wife's waiver to a share of interest in her husband's savings plan, as at the time of drawing up of the prenup, it was not foreseen that the husband would later increase his contributions toward the savings plan. Both sides can waive off disclosure beyond what is provided, and it is not required to be notarized, but it is a good practice. There are special requirements if a couple signs a prenuptial contract without an attorney. Also, the parties need separate representation if they limit alimony or spousal support.

Some aspects of a prenuptial agreement are different in California law. Courts do not allow inclusion of clauses in the prenups, that penalize people for infidelity or using recreational drugs. They will also not enforce that the children will be raised in a certain religion, or trivial requirements like - one person must do the dishes. However, one big benefit here is that Registered Domestic Partners can also get a prenup.

A point of importance is that, unlike all other contract laws, in prenuptial agreements, consideration is not required. An important inclusion in all prenups is a choice of law provision. This ensures that the prenup is enforced in accordance to the law of the state the couple got married in, and not the state that they reside in at the time of divorce. Called a 'sunset' provision, the lapsing of the agreement after a specified amount of time can also be included. This provision automatically applies in a few states. Some other states, such as Maine, allow for the agreement to automatically expire after the birth of a child, unless it is renewed. An aspect that is not viewed favorably during the time of drawing up the agreement is, if it calls for the payment of a lump sum at the time of divorce, as this may promote divorce.

Laws governing prenuptial agreements do not exist in all countries. England and Wales do not enforce prenuptial agreements as of 2007. However, an agreement may be upheld if the presiding judge decides to enforce it. Some other countries including Canada, France, Italy, and Germany, have matrimonial regimes. These may be over and above prenuptial agreements, or in place of them.

Though deemed unromantic, prenuptial agreements are a good way to protect both partner's interests. In uncertain times, whether the marriage is impulsive or a well thought out one, it is advisable to have a prenup.