Premarital, Prenuptial or Antenuptial Agreement: The Basics

What is a prenuptial or premarital agreement?

A premarital, prenuptial, or antenuptial agreement is a written agreement or contract made between prospective spouses in contemplation of marriage. Generally, the agreement sets forth the rights and obligations of the parties in and to their present and future income and property as well as alimony or spousal support.  In addition, certain jurisdictions allow the agreement to include lifestyles clauses which address the behavior of the parties during the marriage.  The agreement becomes binding and effective upon the marriage.

What can a prenuptial agreement do?

A premarital or prenuptial agreement can address a variety of issues if a parties’ marriage ends by death or divorce. It can establish how spouses will divide the property and assets they own or acquire before, during or even after their marriage.  In this regard, premarital or prenuptial agreements can protect a business, inheritance and/or an interest in a trust as well as property and assets owned before the marriage. Similarly, premarital or prenuptial agreements can be used to protect and secure assets for a child or children from a previous marriage or relationship.  In addition, premarital or prenuptial agreements can set forth the parties’ respective spousal support or alimony obligations in the event of a divorce.  As mentioned above, depending on the jurisdiction and/or applicable statutes and case law, parties can establish lifestyle clauses which guide the parties’ behavior during their marriage.

What can’t a prenuptial agreement do?

A prenuptial agreement cannot establish a binding agreement between parties regarding the custody parenting time or visitation of children that are born before or during a marriage.  Likewise, parties cannot prospectively establish a child support obligation or waive child support entirely until the time of a divorce.  The reason for this is that parties and the court can never prospectively determine what is in a child’s best interest or what position the parties will be at the time of a divorce.  As such, child-related issues must be resolved at the time of the divorce.  Also, depending on the jurisdiction and/or statutes and case law applicable to your agreement, lifestyle clauses may be declared unenforceable.

What are the benefits of a prenuptial agreement?

There are many benefits of entering into a premarital or prenuptial agreement.  First, the agreement provides spouses with certainty and clarity regarding what property and assets they will receive in the event their marriage ends by death or divorce.  Second, because premarital or prenuptial agreements set forth the division of most, if not all, of the parties property, assets and income, they often significantly reduce the legal fees incurred in the event of a divorce, ultimately leaving more money for both of the parties.  Third, due to the financial disclosures that have to be exchanged by the parties in the course of preparing the premarital or prenuptial agreement, parties will enter the marriage fully informed of their spouse’s financial position including their property, assets, debts and liabilities preventing potential unpleasant surprises down the road.  When used in conjunction with a proper estate plan, parties can use a premarital or prenuptial agreement to protect their assets and secure financial security and peace of mind for themselves and their family.

Is a premarital agreement right for me?

Whether or not somebody should enter into a premarital or prenuptial agreement is based on a variety of factors.  You need to consider your age, health, where are you live, your income level and employment status, the nature and value of your property, assets, debts and liabilities, whether you have children or are planning to have children, your future plans and much, much more. For more information or to determine whether a premarital or prenuptial agreement is right for you, please contact Gregory N.  Hoffman at ghoffman@bglaw.com or by phone at 401.273.7171.

Gregory N. Hoffman focuses his practice on complex family law, criminal law, general civil litigation and probate matters. He actively practices in the courts of Massachusetts and Rhode Island litigating cases such as divorce, child custody, child support, domestic violence, trusts and estate disputes, criminal defense and personal injury.  In addition, Greg devotes a significant amount of time developing comprehensive and cost-effective solutions in the drafting of a variety of domestic relations agreements such as premarital agreement, prenuptial agreement, antenuptial agreements, co-habitation or domestic partnership agreements, separation agreements, marital or property settlement agreements and much more.