- Rules for prenuptial agreements vary from state to state, but in order to be legitimate contracts and upheld as such, must be in writing and signed by both parties. Contrary to most contracts, they are enforceable without any consideration. Changes to the agreements can only be done in writing and signed by both parties.They become enforceable when the marriage occurs.
- Prenuptial agreements give parties the freedom to determine how to classify certain property and order asset distribution instead of having a court do it. Prenup contract terms can be very broad and party-subjective but many states have standard forms you can use. For example, Chapter 4 of the Texas Family Code permits parties to contract with respect to: the modification or elimination of spousal support, the making of a will or trust, the ownership rights in and disposition of the death benefit from a life insurance policy, the choice of law governing the construction of the agreement, and any other matter, including their personal rights and obligations, as long as they don't violate public policy or break the law.
- You won't be able to enforce a prenuptial agreement if it was not signed and entered into voluntarily by both parties. It will be ruled invalid if a court determines that the agreement was signed as a result of fraud or duress. Fraud typically occurs when one party does not give fair and reasonable disclosure as to the extent of her financial obligations and the other party did not knowingly waive the right to full disclosure. Also, an agreement can't be unconscionable at the time of signing.
- There are a few things you cannot do in a premarital agreement. One is, you can't contract out of the responsibility of paying child support. You generally cannot agree to anything that goes against public policy or would result in a criminal penalty either.
- It is wise to sign the agreement well in advance of the wedding. Doing so helps avoid speculation that the contract was a result of coercion or duress. Also, each party should have the agreement reviewed by an attorney; a different attorney. This is not only smart but also aids in preventing unconscionable terms or a claim of coercion.
