Marriage and divorce law are complex issues. Although a prenup agreement should make the process of marriage and divorce easier, it sometimes adds to the confusion. Find out how prenuptial agreements vary according to situations. Before you get a prenup, learn what you should know about prenup laws.
What is a Prenup?
Although prenup laws vary from state-to-state, the definition of a prenup remains similar. A prenup is a contract that is made and agreed upon before your marriage or civil union. In all situations, the agreement is between you and your prospective partner. The most variations regarding prenup laws affect the content of the agreement. While one state might allow you to include a certain statement in your prenup, another state might not allow it.
As a general rule, prenups include information about property division and spousal support. If you and your partner ever divorce, then the agreement specifies which property you get and how much spousal support you get. In some prenups, there is also information about what occurs in the event of cheating or similar infidelities. For example, a prenup could specify that a partner gives up all rights to property if there is evidence of his adultery. The conditions of the prenup vary greatly.
It’s important to understand prenup laws carefully before you make a prenup. If you include something in your prenup that your state does not recognize, then your prenup is useless. You cannot hold your partner to a prenup that your state fails to recognize. As a result, you could be left with much less than you deserve. Your divorce could rest in the hands of a court judge.
Prenup Laws and Variations
Across the world, there are different prenup laws. For example, some countries use matrimonial regimes instead of prenup agreements. In other countries, they use both. The US recognizes prenups, but the agreement needs to be specific to your state. Few states agree on the specifics of a prenup. However, all 50 states of the US do recognize prenuptial agreements.
It’s important to realize that prenups are the same for same-sex couples who legally marry. However, domestic partnerships have slightly different laws. Instead of getting a prenup, you need a Domestic Partnership Agreement. The laws can vary according to your state. In some states, you might know of them as co-habitation agreements.
Despite the variations in prenup laws, there are a few details that everyone in the US can agree with:
1. A prenup must occur before your marriage occurs
If you want your prenup to be valid, then you need to complete it before you marry your partner. However, you can still get a similar agreement after your marriage. You can always draw up a post-nuptial agreement. With a post-nuptial agreement, you can still protect yourself in the event of divorce.
2. The agreement cannot be oral
An oral agreement is not a valid agreement. If you and your partner don’t write up a prenup, then it is not enforceable. Make sure that you get everything in writing with signatures.
3. It must be a voluntary and fair agreement
You cannot force your partner to sign a prenup. If you do, then it is invalid. Likewise, it needs to be a fair agreement. A court might not enforce it if the agreement is unfair to one party. To make sure there is no way for your partner to fight the prenup, you should make sure that everyone knows it is voluntary. Additionally, you should keep the agreement as fair as possible.
4. Both parties must execute the agreement before a notary
You and your partner must both execute your agreement. But it cannot occur in private. If you want a valid agreement, then you need to sign it in front of a notary. This makes it a legally binding agreement.
5. They cannot discuss custody issues
During a divorce, the court takes custody and child access issues very seriously. For this reason, you cannot include anything about child custody or access in your agreement. In all 50 states, prenup laws make it impossible to discuss children in the prenup. The responsibility falls on the shoulders of a judge to decide which parent has the child’s best interest at heart.
Many of the variations in prenup laws involve the actual enforcement of the prenup. For example, California requires legal representation by both individuals if spousal support is one of the agreement’s limitations. Another common variation is in the way you can divide property. While 41 states require the equitable division of property, nine of them use community property laws. You need to make sure that your property division stipulations adhere to your state’s laws.
The best way to understand your state’s prenup laws is to speak to a lawyer. Before you create your prenup, learn what can and should go into the agreement. It’s the key to a successful divorce.