Also known as: pre-nuptial agreements · prenuptial agreement · prenuptial agreements · prenup · prenups · antenuptial agreement · premarital agreement
Written by attorneys — see sources below.
An agreement between individuals who intend to marry that affirms, modifies, or waives a marital right or obligation during the marriage or at separation, marital dissolution, death of one of the spouses, or the occurrence or nonoccurrence of any other event. The agreement becomes effective only upon a valid marriage and is enforceable without consideration provided it satisfies statutory formation requirements such as a signed record.
Portia Price and Preston Pratt signed a premarital agreement waiving all spousal support. After the marriage, Preston suffered a permanent disability that left him unable to work and eligible for public assistance. In the divorce proceeding, the court refuses to enforce the waiver because enforcement would cause substantial hardship due to the material change in circumstances after signing.
Phuong Pham and Piper Patel entered a premarital agreement allocating all property acquired during marriage according to title. Upon dissolution, the court considers the agreement along with the duration of the marriage, each spouse's contributions, and needs when equitably apportioning the estates without regard to marital misconduct.
Pilar Pena and Paige Porter, intending to marry, signed a premarital agreement pooling earnings and sharing property acquired before the wedding. After separation, the court enforces the agreement because it rests on valid consideration and satisfies statutory formation requirements independent of any sexual relationship.
In October 1964, plaintiff and defendant entered into an oral agreement. While the parties lived together, they would combine their efforts and earnings. They would share equally any and all property accumulated as a result of their efforts, whether individual or combined. They further agreed to hold themselves out to the general public as husband and wife. Plaintiff would render her services as a companion, homemaker, housekeeper, and cook to defendant. Shortly thereafter, plaintiff agreed to give up her lucrative career as an entertainer and singer. She did so to devote her full time to defendant as a companion, homemaker, housekeeper, and cook. In return, defendant agreed to provide for all of plaintiff's financial support and needs for the rest of her life. The parties lived together from October 1964 through May 1970. During this period, as a result of their efforts and earnings, they acquired in defendant's name substantial real and personal property. This included motion picture rights worth over $1 million. In May 1970, defendant compelled plaintiff to leave his household. He continued to support plaintiff until November 1971 but thereafter refused to provide further support. Plaintiff brought this action asserting two causes of action. The first, for declaratory relief, asked the court to determine her contract and property rights. The second sought to impose a constructive trust upon one half of the property acquired during the course of the relationship. Defendant answered the complaint after an unsuccessful demurrer. Following extensive discovery and pretrial proceedings, the case came to trial. When the case was called for trial, plaintiff sought leave to file an amended complaint. The trial court treated defendant's motion to dismiss as one for judgment on the pleadings. This was augmented by a stipulation that defendant's marriage to Betty Marvin did not terminate until the filing of a final decree of divorce in January 1967. The court granted the motion and entered judgment for defendant. Plaintiff moved to set aside the judgment. She asked leave to amend her complaint to allege that she and defendant reaffirmed their agreement after the divorce became final. The trial court denied the motion. Plaintiff appealed from the judgment.
Pulse Media executives Preston Pratt and Piper Patel signed a premarital agreement addressing disposition of frozen preembryos in the event of divorce. When the marriage ended, one party withdrew consent to implantation. The court declines to enforce the agreement over the contemporaneous objection because it would compel parenthood against current wishes.
A.Z. and B.Z. married in 1977. For the first two years they resided in Virginia, where both served in the armed forces. They underwent fertility testing after difficulties conceiving. The wife suffered an ectopic pregnancy that resulted in miscarriage and removal of her left fallopian tube. In 1980 the couple moved to Maryland for a year of additional fertility treatment that produced no pregnancy. The wife transferred to Massachusetts in 1988 while the husband remained in Maryland for schooling. He joined her in Massachusetts in 1991. After arriving in Massachusetts the wife began IVF treatments at a clinic. The couple first attempted a GIFT procedure on November 6, 1988, which produced another ectopic pregnancy and removal of the wife's remaining fallopian tube. They then pursued IVF from 1988 through 1991. Each time before egg retrieval the couple signed a clinic consent form. They executed seven such forms in total, the last in August 1991. On every form the wife wrote that the preembryos should be returned to her for implantation should the couple separate. The husband usually signed the forms while blank and before the wife completed the disposition language. The 1991 treatment produced twin daughters born in 1992, and two vials of preembryos were frozen for possible later use. In spring 1995, before the couple separated, the wife thawed one vial and had a preembryo implanted without informing the husband. He learned of the procedure from an insurance notice. Relations deteriorated, the wife obtained a protective order against the husband, the couple separated, and the husband filed for divorce. At the time of divorce one vial containing four frozen preembryos remained in storage. The husband moved for a permanent injunction prohibiting the wife from using the preembryos. The Probate and Family Court bifurcated the preembryos issue from the divorce action and held a hearing at which both parties were represented by counsel. The probate judge found the consent form unenforceable because of changed circumstances since 1991 and balanced the parties' interests, granting the husband a permanent injunction. The Supreme Judicial Court transferred the case on its own motion. On February 8, 2000, it issued an order affirming the Probate and Family Court judgment, with this opinion to follow.
Yes. The agreement must be in a record and signed by both prospective spouses. An oral understanding or signature by only one party fails the formation requirement even if the parties reached detailed terms.
The agreement becomes effective only upon a valid marriage. Signing alone does not govern property acquired during cohabitation if the parties never marry.
…of Dawley (1976) 17 Cal.3d 342 [131 Cal. Rptr. 3, 551 P.2d 323] offers a close analogy. Rejecting the contention that an antenuptial agreement is invalid if the parties contemplated a marriage of short duration, we pointed out in Dawley that a standard based upon the subjective contemplation of the parties is uncertain and…
…v. Stansel , 385 Mass. 510 (1982) (enforcing separation agreement); Rosenberg v. Lipnick , 377 Mass. 666, 673 (1979) (enforcing antenuptial agreement
…protect, and not to undermine, those institutions and interests which are vital to our society. The subject of the validity of pre-nuptial agreements is not a new issue for this Court. A pre-nuptial agreement
…protection to the bride in case of the death of her husband or desertion ... by him”); Note, Planning for Love: The Politics of Prenuptial Agreements (1997) 49 Stan. L.Rev. 887, 905; Younger, Perspectives on
…Rova Farms Resort, Inc. v. Investors Ins. Co. , 65 N.J. 474, 484, 323 A.2d 495 (1974). The other issues are more difficult. Pre-nuptial agreements made in contemplation of marriage are enforceable if they are fair and just. D'Onofrio v. D'Onofrio , 200 N.J. Super. 361, 366-67, 491 A.2d 752 (App. Div. 1985); DeLorean v. DeLorean ,…
The agreement is unenforceable if consent was involuntary or the result of duress, the party lacked access to independent legal representation, the agreement lacked required notice or plain-language explanation of waived rights, or the party did not receive adequate financial disclosure.
A court may refuse enforcement of a support waiver if it was unconscionable at signing or if enforcement would cause substantial hardship due to a material post-signing change in circumstances, such as disability rendering a party eligible for public assistance.
The court must consider the antenuptial agreement when apportioning property and assets, along with factors such as marriage duration, contributions of each spouse, age, health, income, and needs, without regard to marital misconduct.