Future spouses are often approached with the request that they sign a premarital agreement. Here are a few considerations that you should think over before signing this type of agreement:

What is a premarital agreement?

A premarital agreement (also known as a “prenup” or “prenuptial agreement”) is an agreement that is only valid if (1) it’s in writing and (2) it’s signed by both parties. Once married, the agreement takes effect and is a binding legal contract.

A prenup can be tailored to meet the unique needs of each couple. Common issues that are addressed in prenup agreements are:

  • Rights of spouses to manage assets, debts, and other incomes
  • How property will be distributed if a separation or divorce were to occur
  • Provide for a procedure regarding joint bank accounts and funds
  • If, or how much, post-separation support or alimony would be paid upon separation or divorce
  • Issues regarding inheritances and how property will be distributed upon death of either spouse

You are the master of your future.

The great thing about a prenup contract is that you are not required to sign it. The only way a prenup is validly binding is for you to sign it voluntarily. Meaning, of your own free will. You do not have to sign a prenuptial agreement to get married, but if you do, be aware that you will likely be legally bound to follow its terms.

Consider why you are being pressured into signing it.

If you are being pressured into signing the prenup, at least consider the fact that the terms may not be in your best interest. A common issue that makes a prenup “unfair” is if the terms are one-sided, meaning the terms do not favor your legal rights. Additionally, consider that perhaps you were not provided full disclosure of your partner’s assets or liabilities.

Have you had an attorney look over it?

Such an important decision should not be made alone. At the very least, we suggest you seek the advice of a trusted friend to provide a third party perspective. They can give you an idea of the ramifications of what you’re signing. Additionally, and most importantly, one should seek the advice of an attorney. A lawyer can look over the document’s terms and inform you as to how it affects your legal rights.

How can a Wilmington attorney help me get out of, or avoid my prenup?

If you have already entered into a valid prenuptial agreement, there are a few ways to “break” the agreement, or have it deemed invalid by a court. Here are a few examples:

  • The spouse did not provide a full disclosure of all his/her assets, debts, and liabilities
  • Conduct of the other spouse coerced you into signing the document (“undue influence”)
  • The terms of the agreement are “unconscionable,” meaning the terms are so unfair that a court would allow you to be free of the contract.

In short, entering into a prenuptial agreement that is unfair is a disaster that can be completely avoided. We are not recommending that couples completely avoid entering into these type of agreements. Rather, we recommend that couples seek the advice of an experienced and informed attorney who can provide advice and guidance. Keep in mind, that all conversations you have with you attorney are confidential.

This post is provided for informational purposes only, and is neither intended as legal advice, nor does it establish an attorney-client relationship. To speak to an attorney, contact Dugan & Leger, PLLC at 910-253-5400.