Frequently Asked Questions:
The Prenuptial Agreement

by Elayne B. Kesselman, Esq.


    What is a prenuptial agreement?

    A prenuptial agreement is a binding agreement entered into prior to the marriage in which the parties, in however much detail they wish, set forth what will happen to their income and assets in the event the marriage ends in death, divorce, or separation.

    Who uses prenuptial agreements?

    In the past, prenuptial agreements were often favored by individuals who were marrying for the second time, and had assets from a previous marriage which they wanted to preserve for their children from that marriage. Thus, the couples were typically older and had a significant amount of assets.

    Increasingly, probably because many people are marrying later for the first time, prenuptial agreements are also being used by individuals marrying for the first time who have been in the work force for a period of time and have accumulated assets which they do not want to lose in the event of a divorce. In addition, people who have friends who have been "burnt" by divorce may want prenuptial agreements which limit not only the distribution of assets, but also the amount and duration of support which one party can receive from the other.

    Doesn't a prenuptial agreement mean the parties don't trust each other?

    Maybe, but a prenuptial agreement usually is grounded in realism rather than a lack of trust. For older couples who are marrying a second time, the parties simply want to protect their children. Younger couples may simply feel that a prenuptial will save expense later if the marriage does not work out.

    Do courts uphold prenuptial agreements?

    The validity of a prenuptial agreement depends on the state where you live. In general, the closer to the wedding date the prenuptial was signed, the greater than danger that it will not be upheld. If one side was represented by a lawyer and the other was not, or both sides were represented by the same lawyer, either party can argue he or she did not understand what was signed, and the prenuptial agreement may not be valid. If the parties failed to disclose their assets, the prenuptial can be attacked on that basis.

    The greater the number of these factors in one case, the greater the chances a court may not uphold it.

    Finally, a court may ignore provisions concerning custody and child support in favor of the standards of what is in the best interest of the child.

    How does a judge decide whether to uphold the prenuptial agreement?

    A judge may conduct a trial on the issue, or may read sworn statements concerning the agreement. Decisions are based on which side the judge believes, as well as a consideration of the law.


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