EveryBody's Guide to the Law

PREMARITAL AGREEMENTS
A premarital agreement, also called an “antenuptial” agreement, is a contract a man and a
woman enter into before marriage, a contract that governs their rights and obligations in the
event of death or divorce. At one time, courts enforced only premarital agreements that covered
the rights of the couple in the event one of them died. Premarital agreements that purported
to set the couple’s rights if they got divorced had no legal force or effect because of the
belief that such agreements promoted marital disharmony and divorce. Today most, if not all,
states will uphold a premarital agreement in either situation (i.e., death or divorce) if it meets
some fairly rigorous guidelines.
Not everyone has to be concerned about premarital agreements, and some people need to
be more concerned about them than others. For example, a young couple with no children
from prior relationships, no assets to speak of, and no business interests, generally would rarely
need a premarital agreement. But a middle-aged person with several children from a prior marriage,
his or her own house, an established business, and other assets should seriously consider
a premarital agreement.
What can be covered by a premarital contract? Anything you like. It can be as exhaustive
or as short as you like. The typical premarital contract, however, does not cover such things as
who takes out the trash and who does the dishes. Rather, it usually speaks to the end of the
marriage, when the time comes to divide the property and determine the amount of alimony
payments or even whether alimony should be paid at all. Sometimes there is a paragraph or
two relating to the custody and support of any children that are born of the marriage. However,
any provisions regarding children are not binding upon the court; the best interests and
the needs and welfare of the child (discussed later in this chapter) are the deciding factors.
A court will enforce a premarital contract only if, before the agreement was made, both
parties made a fair and full disclosure of all of his or her assets and other relevant information.
If one party misrepresented the nature or extent of his or her property, the court most likely
will refuse to enforce the agreement.
The agreement should by all means be in writing. State law usually requires this, and it also
is the only way of ensuring that there is no dispute as to the terms of the agreement. The premarital
agreement should be written in as simple English as possible, to prevent either spouse
from coming back at a later date and saying that he or she didn’t really understand the agreement
and signed it only because everyone was pressuring him or her to do so.
It had generally been assumed by family law lawyers that a couple about to be married who
were entering into a premarital agreement should each be represented by their own attorney,
otherwise the party that was not represented by legal counsel could claim that the agreement
was unfair. However, in a high profile case involving baseball star Barry Bonds, the California
Supreme Court ruled that whether a party to a premarital agreement was represented by his or
Marriage, Divorce, and the Family 5