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What is a Common Law Marriage?
Marriage - September 2023
Nothing says ‘romance’ like negotiating a prenuptial agreement in the months leading up to your wedding, right?
But, as awkward as it may seem, negotiating a prenuptial agreement with your future spouse is practical and a good idea, particularly if one spouse has more assets than the other. Prenups are a way for both people to go into their marriage with full knowledge about their partner’s finances and with certainty about what will happen if they break up.
But first, before discussing the enforceability of prenups, let’s first define the term.
A prenup is a contract between two people that is signed before marriage and determines the rights of each party in the case of separation. They’re not just for the rich and famous—even people with regular incomes use them to address their assets, children from previous relationships, etc. In fact, prenups have become even more popular in recent years with millennials.
There are many reasons to get a prenup, and they can cover so many different areas, like:
Do prenups hold up in court? The answer is—if done correctly, yes. The following issues can void a prenup agreement:
The agreement can’t include portions that are blatantly unfair, or unconscionable, to one of the parties. Unconscionable has been defined by a court as follows: “An agreement is unconscionable if it is one which no person in his or her senses and not under delusion would make on the one hand and no honest and fair person would accept on the other, the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense.”
If a prenup is found to be unconscionable, a court will likely strike it down.
Both parties must fully and completely disclose all financial details to the other party. If it’s found that one party hid assets, a court may find that the agreement is void.
Both parties must sign the prenuptial agreement without being pressured or coerced by the other spouse. In other words, the state of mind at the time of signing is key.
You can’t have a fraudulent term or make a promise that’s incapable of being performed in a prenup.
Some states have laws that call for adjustments to be made to prenuptial agreements if one of the spouses would have to go on public assistance after a divorce. No valid prenup can provide less support than what is required by state law.
Prenups are enforceable, for the most part, if they meet these conditions:
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Marriage - September 2023
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