What Is a Prenup and How Does It Affect a Divorce? (2024)

What Is a Prenup?

With falling divorce rates, a marital breakdown can sneak up on many people. When their marriage falls apart, they have no idea what they want or what demands their spouse might make. However, this does not need to happen.

A prenuptial agreement is a contract between two fiances. This agreement sets out the terms that will control a divorce if it should happen. A prenup does not mean that the couple is planning to divorce. Instead, it provides a roadmap if a divorce happens. If it does not, the couple will never need the agreement or its terms.

Every state recognizes prenuptial agreements and will enforce their terms in a divorce. However, state laws may differ in the following ways:

• Requirements for a valid agreement

• Interpretation of an agreement’s terms

• Specific exclusions from marital agreements

The Uniform Law Commission drafted the Uniform Premarital and Marital Agreements Act to provide a template for state laws covering prenuptial agreements. Uniformity would allow couples to enter into these agreements knowing that they will be interpreted and enforced the same regardless of the state where they were written or where the divorce was filed.

However, this effort has faced difficulties. 25 states either have no state law addressing prenuptial agreements, like Washington State, or they have a statute that differs from the Uniform Act, such as New York.

Among the remaining jurisdictions, only three have enacted or introduced the most current version of the Uniform Act. The remaining 22 states plus the District of Columbia rely on an older version of the Act. As a result, the laws that apply to prenuptial agreements vary significantly from state to state.

Prenup Meaning Under the Law

Before getting into the substantive laws governing prenuptial agreements, you should first understand two additional terms. Marital agreements include two other types of contracts that accomplish similar goals as a prenuptial contract but reach them in different ways.

A postnuptial agreement occurs after marriage. The timing distinguishes them from prenuptial agreements, which happen before marriage. In addition to occurring at a different time, some states limit the scope of postnuptial agreements.

For example, California’s prenuptial agreement statute allows agreements to cover both property division and alimony. By contrast, its postnuptial agreement statute only allows agreements between married spouses to cover property division.

Another term to understand is separation agreements. These agreements happen after the couple has decided to separate or divorce. You can think of these as settlement agreements for married people. These are also marital agreements, but the rules governing prenuptial agreements do not apply to them.

What Does a Prenup Do?

The purpose of a prenup is to smooth the divorce process. Most prenups will address property division and alimony, also called spousal support. Courts will usually respect the contract’s terms as long as they meet the following standards:

• Fair

• Written

• Witnessed or notarized

• Entered into voluntarily without duress or undue pressure

Do prenups work? When a prenuptial agreement meets the state’s requirements, the final divorce decree will allocate property and award alimony according to its terms. If the prenuptial agreement fails to meet these standards, the judge will throw it out and rely on state law to wind up the couple’s legal and financial affairs before dissolving their marriage.

Thus, prenups have three main benefits. First, they give the couple control over how a court will divide their property and award alimony if they divorce. Without the prenup, the parties rely entirely on mediation or a divorce judge to make these decisions.

Second, they can hold down the costs of a divorce. If the parties focus on creating a valid agreement during the prenup process, they can reduce the issues addressed in a divorce.

Instead of deciding property division, alimony, child custody and child support, the divorce can focus on child-related matters and use the agreement to handle property division and alimony.

Finally, they can encourage divorce settlements. A valid prenup tells each side what they can receive from the divorce court. Instead of spending time and money litigating, they can settle their case quickly and relatively inexpensively.

How to Create a Prenup

A basic prenup is, at its core, a contract. It must comply with the state’s requirements for forming a basic contract, such as mutual assent and unambiguous terms.

Importantly, a prenup does not need to meet one of the other requirements under contract law, namely, consideration. Each party need not give up something for a valid agreement. Instead, a valid agreement can have all the burdens fall on one party as long as it is fair.

Thus, a wealthy fiancee can enter into a prenuptial agreement where they give up part of the property they had before the marriage in any divorce. The other spouse does not need to give up anything to form a valid prenup.

Additionally, many states have additional requirements that apply specifically to prenuptial agreements. Thus, you must read your state’s unique laws to learn how to get a prenuptial agreement that a court will follow.

For example, many states do not allow the parties to include child support terms. In these states, the court will ignore any terms that restrain how the court awards child support.

However, New York’s statute allows a standard prenuptial agreement in the state to address child custody, care, education and maintenance. The court will enforce these terms when they are consistent with state law, even if the court would have decided the issues differently.

Contact ConsumerShield to Learn More

Planning can always help the divorce process go smoother if it happens. ConsumerShield can help you find a lawyer to draft a prenup or enforce it when your marriage breaks down. Contact us for a free case evaluation.