Also known as: antenuptial agreement · antenuptial agreements · prenuptial agreement · prenuptial agreements · premarital agreement · pre-nuptial agreement
Written by attorneys · grounded in primary & secondary sources — see below
A written contract between two individuals who intend to marry that affirms, modifies, or waives rights and obligations that would otherwise arise from the marital relationship, including property division and support. The agreement takes effect only upon a valid marriage and is enforceable without separate consideration.
Adrian and Anika signed a premarital agreement waiving all spousal support. After the wedding Anika developed a severe disability that left her unable to work. In the divorce proceeding the court refused to enforce the waiver because enforcement would cause substantial hardship due to the material change in circumstances after signing.
Alice and Aaron entered a premarital agreement designating Alice's business as separate property. During divorce proceedings the court considered the agreement when equitably apportioning marital assets, giving weight to its terms alongside the duration of the marriage and each spouse's contributions.
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Amelia and Andre lived together for years and signed a written agreement pooling earnings and assets. After separation Amelia sought enforcement. The court treated the agreement as a cohabitation contract rather than a premarital agreement because the parties never married.
Aaron and Anika executed a premarital agreement waiving elective share rights. After Aaron's death Anika sought to claim against the estate. The court enforced the waiver because the agreement was in writing and signed by both parties before marriage.
Alice and Adrian signed a premarital agreement addressing disposition of frozen preembryos in the event of divorce. After separation Alice sought implantation over Adrian's objection. The court declined to enforce the agreement against the contemporaneous wishes of one donor.
A premarital agreement becomes effective only upon a valid marriage. Signing alone does not make the agreement operative if the parties never marry.
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The agreement must be in a record and signed by both parties. Oral agreements or one-sided signatures are insufficient.
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A court may refuse enforcement if the term was unconscionable when signed or if enforcement would cause substantial hardship due to a material change in circumstances after signing.
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A court must consider the terms of any antenuptial agreement when equitably apportioning property between the spouses.
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…the subjective contemplation of the parties is uncertain and unworkable; such a test, we stated, "might invalidate virtually all antenuptial agreements on the ground that the parties contemplated dissolution ... but it provides no principled basis for determining which antenuptial agreements offend public policy and which do not." (17…