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Guide to Understanding
A Prenuptial Agreement

A prenuptial agreement or antenuptial agreement, commonly abbreviated to prenup or prenupt, is a contract entered into by two people prior to marriage or civil union. The content of a prenuptial agreement can vary widely, but commonly includes provisions for the division of property should the couple divorce and any rights to spousal support during or after the dissolution of marriage.

Types

There are two types of prenuptial agreements: marriage contract for people who are married or about to be married, and cohabitation agreement for unmarried couples. A variation for people who are already married is a postnuptial agreement.

Legal Recognition

Laws around the world vary in their recognition of such agreements.

Historically, judges in the United States frowned upon prenuptial agreements as corrupting what marriage was supposed to stand for, and often they would not recognize them. Nowadays they are recognized, although they may not always be enforced. It is common to have legal advice to the effect that both parties should have lawyers present during the signing, for a judge to ensure that neither party has been coerced into the agreement.

Prenuptial agreements are, at best, a partial solution to obviating some of the risks of marital property disputes in times of divorce. They are not the final word.

U.S. Law

In the United States, prenuptial agreements are recognized in all fifty states and the District of Columbia. Likewise, in all jurisdictions, five elements are required for a valid prenuptial agreement:

1. agreement must be in writing (oral prenups are always prohibited);

2. must be executed voluntarily;

3. full and/or fair disclosure at the time of execution;

4. the agreement cannot be unconscionable;

5. it must be executed by both parties (not their attorneys) "in the manner required for a deed to be recorded", known as an acknowledgement (law), before a notary public.

Of note, unlike all other contract law, consideration is not required, although a minority of courts point to the marriage itself as the consideration. Through a prenup, a spouse can completely waive rights to property, alimony or inheritance as well as the elective share and get nothing in return.

A sunset provision may be inserted into a prenuptial agreement, specifying that after a certain amount of time, the agreement will expire. In a few states, such as Maine, the agreement will automatically lapse after the birth of a child, unless the parties renew the agreement. In other states, a certain number of years of marriage will cause a prenuptial agreement to lapse. In states that have adopted the UPAA (Uniform Prenuptial Agreement Act), no sunset provision is provided by statute, but one could be privately contracted for.

Catholicism

Prenuptial agreements are a matter of civil law, so Catholic canon law does not rule them out in principle (for example, to determine how property would be divided among the children of a prior marriage upon the death of one spouse).

In practice, prenuptials may run afoul of Church law in a number of ways. For example, they cannot subject a marriage to a condition concerning the future (such as an agreement about the dividing of assets in case of divorce). The Code of Canon Law provides: "A marriage subject to a condition about the future cannot be contracted validly." (CIC 1102)

The Canon Law: Letter and Spirit, a commentary on canon law, explains that condition may be defined as "a stipulation by which an agreement is made contingent upon the verification or fulfillment of some circumstance or event that is not yet certain." It goes on to state that "any condition concerning the future attached to matrimonial consent renders marriage invalid." For example, a marriage would be invalid if the parties stipulated that they must have children or they have the right to divorce and remarry someone else.

Judaism

In Judaism, the ketubah, a prenuptial contract, has long been established as an integral part of the Jewish marriage, and is signed and read aloud at the marriage ceremony. It contains the husband's requirement to support his wife by providing her with food, clothing and marital relations, as outlined in Exodus 21:10, as well as providing for the wife's support in the case of divorce or the husband's death.

A Case Study

Writer Erica Jong has been married four times. In the late 1990s Jong wrote an article about her fourth marriage in the magazine Interview. Since she and her prospective husband (a divorce lawyer) knew much about the hazards of marriage, they drew up a prenuptial agreement. After ten years, they noticed that they had never taken it out of the drawer where it had resided since its signing. She and her husband decided that it was no longer needed, so they ceremonially burned it. This act has become a tradition in some circles.


 
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