A prenuptial agreement, antenuptial agreement, or premarital agreement (commonly referred to as a prenup), is a written contract entered into by a couple prior to marriage or a civil union that enables them to select and control many of the legal rights they acquire upon marrying, and what happens when their marriage eventually ends by death or divorce. Couples enter into a written prenuptial agreement to supersede many of the default marital laws that would otherwise apply in the event of a divorce, such as the laws that govern the division of property and retirement benefits and savings, and the right to seek alimony (spousal support) with agreed-upon terms that provide certainty and clarify their marital rights. A premarital agreement may also contain waivers of a surviving spouse’s right to claim an elective share of the estate of the deceased spouse. The prenuptial agreement not only provides for what happens in the event of a divorce, but also to protect some property during the marriage, for instance in case of a bankruptcy. However once a couple gets married after signing a prenuptial agreement, the terms of the contract are not necessarily set in stone. It is possible to make changes to these agreements, or even revoke it if desired.
Reasons To Changed or Revoked a Prenuptial Agreement…
- Don’t Want It Anymore – The couple decides they no longer want a prenuptial agreement
- Property Allocation – The couple wants to redistribute their property allocation
- Additional Property to Be Added – A spouse acquires additional property that was not included in the original agreement
- Children – The couple has children that must be accounted for in the agreement
How to Change a Prenuptial Agreement…
As long as you and your spouse agree, your prenuptial agreement can be changed. To create an amendment to a prenup, you can either add to the original contract or sign a separate contract that modifies the terms of the initial agreement. This is true for revoking also. Hopefully, your original contract has terms for what to do if amendments or cancellations are needed. If so, the additional info can be added to the original contract. If not a new contract will have to draw up. The terms cannot be changed if a couple is separated or in the process of divorce. Changes can only be made before a wedding or during the marriage.
Postnuptial Agreements
A postnuptial agreement is a written agreement executed after a couple gets married, or have entered a civil union to settle the couple’s affairs and assets in the event of a separation or divorce. It may be notarized or acknowledged and may be the subject of the statute of frauds. Like the contents of a prenuptial agreement, provisions vary widely but commonly includes provisions for division of property and spousal support in the event of a divorce, death of one of the spouses, or breakup of the marriage. Postnuptial agreements generally define the division of property gained after a couple is married, so the contracts are focused on different assets than prenuptial agreements.
Analyzing Your Prenuptial and Postnuptial Agreement
Check your state law. Although all states allow you to revoke a prenuptial agreement, some do not allow you to modify the agreement after marriage, and a postnuptial agreement will have limited or no effect.
- Some states don’t officially recognize the legal validity of postnuptial agreements. In these states, you can only terminate your prenup but you may not be able to create another agreement.
- For example, Ohio has a statute that explicitly prohibits postnuptial agreements.
- Kentucky typically enforces postnuptial agreements since passing public policies in November 1990. However, the agreement needs to be a legal contract in the eyes of the court, which means there was no fraud or misrepresentation in obtaining the contract and that there were fair conditions for both parties.
- In states that don’t recognize postnuptial agreements, spouses may only make agreements that alter their legal relationship regarding property ownership in the context of a legal separation.
- Even in states that do recognize postnuptial agreements, judges evaluate these agreements more strictly because under the law spouses have a greater duty to each other after they are married than they did before.
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