A prenuptial agreement is an agreement entered into before two people are married. The agreement usually covers how property will be divided and may cover how spousal support will be paid in case of a divorce. A prenuptial agreement can also cover what will happen if the engagement is broken off. This may be particularly useful if the couple is already living together.
Property agreements between engaged couples are nothing new. The Hebrew marriage contract, called the ketubah, is at least 2,000 years old. This contract was intended to protect women in case of divorce or widowhood by setting out the husband's financial obligation to the wife. This agreement also made it expensive for a husband to divorce his wife and so made marriages more stable. By the ninth century in Europe, husbands were required to secure one-third of their property to their wives on their death as dower rights. Wives sometimes brought dowries of money or land to the marriage. These arrangements were covered in an agreement drawn up before the marriage. Up until the 19th century in the U.S., married women could not own property and all of a wife's property was transferred to her husband on marriage. This began to change when New York State passed the Married Women's Property Act of 1848. Before then, women needed marriage contracts to guarantee them property in case of divorce or the husband's death.
A prenuptial agreement should be distinguished from an antenuptial agreement. A prenuptial agreement, like it sounds, is entered into before the marriage, while an antenuptial agreement is entered into after the marriage takes place. Courts are more likely to enforce a prenuptial agreement than they are an agreement that changes the relationship between a husband and a wife.
The law on U.S. prenuptial agreements is determined by the states, so the provisions required for an effective agreement are different from state to state. Some states will not enforce prenuptial agreements or will only enforce them in certain situations. For example, a provision for a low spousal support might not be enforced if the spouse became disabled and needed more assistance.
The main benefit of a prenuptial agreement is that it can avoid or partially avoid the expense of a long dispute over dividing up property in a divorce. Property disputes in a divorce can take up to a year and eat up many of the couple's assets, so prenuptial agreements provide a kind of insurance against wasting assets that way.
Up until the 1990s, courts in many states refused to enforce prenuptial agreements. Now courts are more open to the agreements, but it still important that you make sure your agreement is drafted in a way that will be enforced in your state or a state where you may move later. If you have substantial assets or expect to have later, it might be worth the expense to have a lawyer draft or check the document for you.
- The Marriage Bargain: Women and Dowries in European History; Marion A. Kaplan; 1985; p. 22.
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