Prenuptial and Postnuptial Agreement FAQs

Prenuptial and postnuptial agreements must be in writing and must be signed by both parties to be valid. Unlike other contracts, no consideration is necessary other than the marriage itself. Prenuptial agreements, which are entered in before the marriage, become effective on the date of the marriage, while postnuptial agreements, which are formed after a couple weds, go into effect when they are signed. The agreements must be entered into voluntarily, and the parties must fully disclose their property and financial obligations unless they have waived the right to such disclosure or aware of one another’s finances.

Prenuptial and postnuptial agreements can establish the rights and obligations of each party with regard to any property they own separately or together, including how such assets should be divided if they divorce and the right to sell, use, buy, lease, or otherwise control any property during the marriage. They can also dictate whether either party will receive spousal support in the event of a divorce and establish ownership rights to the benefits of a life insurance policy and retirement funds. Prenuptial and postnuptial agreements cannot, however, adversely affect a party’s right to child support or define child custody rights.

Generally, the courts will uphold prenuptial and postnuptial agreements, with some exceptions. A party arguing that such an agreement should not be enforced must show that it was not executed voluntarily or that it was the product of duress, fraud, coercion, or overreaching. An agreement that was unconscionable when it was executed will also be deemed unenforceable. Unconscionability only arises in cases in which the contesting spouse was not provided a reasonable and fair disclosure of the other spouse’s property financial obligation, did not waive the right to such disclosure, and did not and reasonably could not have an understanding of the other spouse’s finances. A court will also refuse to enforce prenuptial and postnuptial agreements in cases in which the marriage is deemed void.

If the court finds that parties entered into a valid prenuptial or postnuptial agreement, inappropriate behavior on behalf of either spouse is unlikely to invalidate the agreement. In other words, unless the terms of the agreement explicitly state otherwise, adultery, abandonment, or other behavior will not render any or all of the agreement invalid. Parties may choose to include provisions in prenuptial and postnuptial agreements, known as lifestyle clauses, that dictate that certain actions will invalidate the agreement, though, and the courts will typically enforce such terms.