A prenup or a premarital agreement, sometimes called a prenuptial or antenuptial agreement is a contract. A contract is just a written agreement between two or more parties. These agreements explain how to split up premarital property (items acquired by a spouse prior to the marriage) and marital property (property acquired during the marriage), and how much, if any, alimony or support one spouse should get if the marriage ends in a divorce.
There are other common aspects such as support during the marriage, health and life insurance rights, rights in inheritance, business protection and obligations regarding debts. As you can see, premarital agreements or a prenup can become complicated and should always be done by a qualified professional.
For a premarital agreement to be valid and enforceable it must be entered into by both parties to be married under their own free will. This means if a party enters into the agreement under duress or coercion then the agreement is invalid and a court will not enforce it. There are many different types of duress or coercion when entering premarital agreements, but a court is the authority on deciding these issues.
In most states to eliminate the notions of duress, coercion and unfairness the premarital agreement must be signed by both parties sometimes week in advance of the wedding date, and only after the agreement has been reviewed by independent attorneys for each spouse. Although these requirements can sometimes be worked around, following them will almost ensure your premarital agreement is enforceable and will not be “thrown out”. Being forced to sign a prenup at the alter would be an example of duress and would most likely invalidate the agreement.
A prenup can save time and money if a divorce happens. A lot of the contested issues during a divorce such as who keeps the car or house, and who gets alimony are agreed to even before the marriage begins. It is a powerful planning tool especially when done in conjunction with other types of planning such as a will and healthcare proxies and powers of attorney.
As an attorney I always recommend clients to have things planned out in advance, and premarital agreements are at the top of the list. Your marriage is a contractual relationship and the premarital agreement supplements this contract.
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Walter Lau is a named partner at Lau & Nicolello, LLC. He holds a JD from New York Law School and his Bachelor of Arts from the University of Maryland - College Park. Walter is licensed to practice law in both New York and New Jersey and has handled business purchases and sales, insurance subrogation, UCC disputes, Criminal and Municipal Court appearances, and personal injury lawsuits.