Requirements for a Valid Premarital Agreement
A premarital agreement must be:
- In Writing. An oral premarital agreement is unenforceable.
- Signed by Both Spouses. Both spouses must sign the agreement.
- Voluntarily. Both spouses must voluntarily enter into the agreement.
- After a Full Disclosure of Income and Assets. In order for a premarital agreement to be valid, a spouse must fully and accurately disclose his or her income and assets to the other spouse. Some states permit a spouse to waive a full disclosure of assets, but the waiver must be made knowingly and voluntarily. If a full and accurate disclosure was not made, and disclosure was not waived, a court may refuse to enforce the agreement.
- Free From Fraud and Duress. A premarital agreement is invalid if it is a result of fraud or duress. A spouse's inaccurate or incomplete disclosure of income or assets may constitute fraud. A premarital agreement is a result of duress if one spouse has signed the agreement due to physical or emotional abuse, threats of physical harm, or extreme emotional pressure.
Factors Considered by Courts
In deciding whether to uphold a premarital agreement, a court will consider a number of factors. The most common factors are:
- Time Between Signing the Agreement and the Wedding. Courts want to make sure that both spouses have voluntarily entered into the agreement. Therefore, courts will look at the amount of time that passed between the signing of the agreement and the wedding. A premarital agreement is more likely to be upheld if it was signed a substantial amount of time before the wedding. If an agreement was signed immediately before the wedding, a court may determine that one spouse did not enter into the agreement voluntarily because he or she did not have time to consider it.
- Participation of Two Attorneys. Prior to signing a premarital agreement, the agreement should be reviewed by two independent attorneys: the husband's attorney and the wife's attorney. A premarital agreement is less likely to be upheld if the husband and wife were represented by the same attorney or one spouse had no attorney.
- Fairness and Reasonableness. A court will review the premarital agreement to determine whether its terms are fair and reasonable under the circumstances. If the court decides that the terms are not fair and reasonable, the court may refuse to enforce the agreement.
Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.