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Prenuptial Agreements In The US Demystified (PART 3): Applicability And Enforceability Of The Agreement

Present application in the US
All fifty states and the District of Columbia accept prenuptial agreements in the US, and they are valid if written in line with all applicable federal and state laws. In the past, there was some skepticism regarding the legality of premarital agreements when couples entered into them.

Uniform Premarital and Marital Agreement Act (UPMAA)
In states that have enacted the Uniform Premarital and Marital Agreement Act (UPMAA),[1] such as Florida,[2] New Jersey,[3] Virginia,[4] and California,[5] the presumption of legitimacy and enforcement of such agreements is no longer in doubt. The UPMAA is now enacted in 28 states and the District of Columbia. In an increasingly mobile culture, the Uniform Law Commission (ULC)[6] approved the UPAA in 1983 to encourage more consistency and predictability across state laws governing these contracts.

A prenuptial agreement that was legally signed in one state would be respected by the courts of some other state in which the couple would file for divorce, which is in part why the UPMAA was passed. In order to modernize and clarify outdated state legislation and establish a standard approach to all prenuptial and postnuptial agreements, the ULC eventually published the UPMAA in 2012. The UPMAA:

  • modernises state laws by requiring written marriage agreements and declaring them to be valid without payment of any kind;
  • provides couples with an adaptable framework for prenuptial agreements that encourages responsible preparation and well-informed choice-making;
  • gives judges a framework for establishing a contract's legality in any state, regardless of where it was signed.

The rules passed by states that adopted the UPMAA do differ slightly from state to state, but this legal framework has undoubtedly made it much simpler for attorneys to draft legally binding marital agreements for their clients by outlining the prerequisites. However, if the failure to disclose makes a prenuptial agreement unfair to one spouse, it may not be enforceable on those grounds. In contrast, no financial disclosure is necessary to waive those very same spousal privileges in a premarital agreement signed before marriage.

Prenuptial agreements are given the same supposition of legality as any other contract, even in states like New York that have not enacted the UPAA/UPMAA, as was seen in the case of Bloomfield v. Bloomfield (2001)[7]. It is not essential for a couple entering into a prenuptial agreement to retain independent attorneys to represent them, as long as each of the parties is competent to understand the agreement and signs it voluntarily with the intention to be legally bound by its terms. There are no state or federal laws obligating adults with contractual capacity to have to recruit legal counsel in terms of being able to enter into a prenuptial agreement.

Prenuptial agreements can restrict the couples' access to property and rights to spousal support, but they can also ensure that any party will have the ability to request or receive spousal support up to a specific amount. A prenuptial agreement that has been properly prepared and carried out may be tough to annul. A prenuptial agreement may specify what would happen in both a divorce and a death scenario.

They can serve as a contract to create a will and/or delete all of one's property rights, the right to a preset heir, the right to serve as an executor and administrator of one's spouse's estate, and the right to a probate homestead. A prenuptial agreement can be contested in court in a number of ways. Prenuptial agreements in all U.S. states are prohibited from regulating matters pertaining to children.

Role of courts in a prenuptial agreement
Prenuptial agreements are still carefully scrutinized by courts, so it pays to execute them properly. Make a deal that is reasonable, transparent, and straightforward. A person�s prenuptial agreement will be annulled if a court finds that it is unjust or does not adhere to state laws.

Although it is alright to discuss and draft a simple prenuptial agreement on their own, both parties should have their own attorneys examine the prenuptial agreement so they may be advised on their rights and make sure it complies with state law.

Applicability of federal laws in prenuptial agreements
The conditions that may be incorporated into a prenuptial agreement are subject to certain federal legislation. President Ronald Reagan signed the Retirement Equity Act (REA) of 1984 into law on August 23, 1984, clearing up any ambiguity regarding whether ERISA superseded state divorce laws and prevented pension plans from adhering to court orders granting a spouse a share of the employee's pension in a divorce decree. A prenuptial agreement may include releases of claims against the other spouse's retirement benefits arising under both state and federal laws as a result of the marriage, such as under the REA.

When a citizen of the United States decides to marry an immigrant, they frequently act as the fianc�'s sponsor for a visa to enter or remain in the country. It is vital to consider the Affidavit of Support responsibility for a U.S. sponsor who is about to publish a prenuptial agreement because the Department of Homeland Security requires those who are financing their immigrant fianc� to come to the U.S. on a Visa to furnish one[49]. The U.S. Government and the sponsor enter into a 10-year contract mandating the sponsor to provide the immigrant fianc� with monetary assistance from their own funds. Divorce does not cancel the sponsor's duties to the United States for support, as stated explicitly in the I-864 form.

Enforceability of a prenuptial agreement
If properly drafted and executed, prenuptial agreements are enforceable and frequently affirmed in court. However, a recent, well-known case has demonstrated that prenuptial agreements are not necessarily unbreakable.

A prenuptial agreement that was signed by Elizabeth and Peter Petrakis, a real estate tycoon worth millions of dollars, four days before their wedding, was overturned by an appeals court in Brooklyn. After agreeing to a prenuptial agreement that guaranteed Peter would retain ownership of all assets in the case of a divorce, the pair were married in 1998.

Elizabeth claimed that Peter compelled her to sign under duress by threatening to call off the wedding if she refused. Even Elizabeth's attorney, Dennis D'Antonio, referred to the ruling as unusual because prenuptial agreements are typically maintained in court. Hence, airtight prenuptial agreements are more of a myth yet can definitely put the spouses in a better condition in cases of divorce in most cases.[8]

Renewal of prenuptial agreements
Prenuptial agreements do not expire unless they have a particular language establishing an expiration date. Unless an adjustment or revocation is agreed to by both parties, their prenuptial agreement will be in effect for the duration of their marriage.

Utility of a sunset clause
A prenuptial agreement's sunset provision specifies when it will expire (often after a certain number of years). For instance, some couples decide to put a provision in their prenuptial agreement that declares it void if they are still married after 25 years. A sunset provision may be liked by some, but a person should consult an attorney before adding one. It is frequently preferable to update or modify their prenuptial agreement after some time passes rather than allow it to finish with a sunset provision.

Having a prenuptial agreement in place is frequently preferable to depending on state divorce procedures since prenuptial agreements are intended to be mutually beneficial and protect both parties. Prenuptial agreements provide the spouses more control over issues like property distribution and spousal maintenance, which the person might not agree with under state law. Ideally, a person�s marriage won't end, but if it does, having a prenuptial agreement in place can be to the person�s best advantage.

Benefits of reviewing one�s prenuptial agreement
Most people sign a prenuptial agreement and then completely disregard it. 20 or 30 years may pass before it is ever used again. However, both of the spouses� life has probably changed significantly since the prenuptial agreement was initially written after 30 years. People change occupations, sell and buy property, and occasionally someone stops working entirely when children are born. Furthermore, values and priorities might change over time. What was significant to the two spouses when they first got married might not be significant to them now that they've been married for ten years. They may both become disgruntled and disappointed if something were to happen and they were required to abide by their original prenup.

Elements to consider when updating the prenuptial agreement
One should carefully evaluate everything in their prenuptial agreement when the time comes to revise it. One should also take into account additional parts of one�s life that might not be currently covered. When revising a prenup, things to think about include:
  • Shared and individual property
  • Shared and individual debts
  • Difficulties with spousal support
  • Inheritances
  • The possessions accumulated after getting married
  • Need to provide for past partners' children

While both spouses should carefully explore how the terms of their prenuptial agreement may affect child-rearing and child support should they split, the spouses are unable to address issues like shared child custody in a prenuptial agreement.

Prenuptial agreements in same-sex marriage
In the 2015 case of Obergefell v. Hodges (2025),[9] the U.S. Supreme Court gave same-sex marriages the same legal status as marriages between spouses of the opposite sex (decided June 26, 2015). A premarital contract signed by a same-sex couple in one state is completely binding in another state in the instance of a divorce as a result of the Supreme Court's decision.

Oral prenuptial agreements
Because the surviving spouse had significantly modified her stance in dependence on the oral agreement, the court of appeals in the 1990 California case of State v. Hall (1997)[10] upheld an oral premarital agreement in the probate of the property of one of the parties. However, because the statutory law has changed, it is now far more difficult to alter the nature of separate or communal property without a formal agreement, as held in Re Marriage of Benson (2005)[11].

There is no necessity for notarization, and parties are free to waive disclosure beyond what is already disclosed, but doing so is recommended. If the parties sign the agreement without an attorney, there are additional procedures, and if the parties limit spousal support, independent counsel is required (also known as alimony or spousal maintenance in other states). Parties have seven days to wait.

Effect of spousal abuse on prenuptial agreements
Unless otherwise stated in the agreement, spousal abuse or adultery does not render a prenuptial or partition agreement unenforceable or ineffective. The majority of prenuptial or divorce agreements do not address abuse or deception. These agreements contain clauses regarding property split and, occasionally, spousal maintenance in the case of a divorce. An infidelity clause can be incorporated into a unique marital contract, but the implications should be carefully studied. If one assumes or even simply alleges, that the other has been disloyal, it might put both of them at risk of legal action.

Impact of prenuptial agreements on the probability of divorce
Can entering into a Prenuptial agreement increase the chances of a future divorce?
It might be easy to assume that a person�s significant other does not believe in their marriage if they ask for the signing of a prenuptial agreement. Marriage is supposed "until death do us part," after all. However, the truth is that divorces between spouses happen every day, and every divorce entails some sort of property division.

If any of the two spouses decide to leave their marriage later, having a prenuptial agreement in place might make property distribution simpler. If they have planned beneficiaries outside their spouse, like their children from a previous marriage, it may also make the allocation of their possessions simpler after their passing.

The data is not definite
It is true that one can find articles on the internet to back nearly any claim. Unsurprisingly, a lot of articles claim that entering a prenuptial agreement increases the likelihood that a couple would divorce. But be cautious about what one uncovers since sometimes these publications simply convey a portion of the story or lack the evidence necessary to back up their assertions. When looking for information on a subject that might be contentious, one will come across equally as many conflicting reports. Prenuptial agreements offer couples a sense of confidence about what will occur in the case of a divorce or the death of one partner, according to some academics, which strengthens relationships.

The likelihood of divorce is influenced by one�s perspective towards the prenuptial agreement
Prenuptial agreement proponents and opponents agree on one thing: a couple's chance of divorcing will depend on how they see their prenuptial agreement, their marriage, and the risk of divorce. A person will probably be more inclined to think about divorce when problems in the marriage develop if they reluctantly sign a prenuptial agreement and believe that their partner is less devoted to the union as a result. Contrarily, a couple that is in agreement with their prenuptial agreement may be more willing to make concessions and cooperate, which can help them resolve problems in their marriage that would otherwise lead to divorce.

A prenuptial contract as a safety measure
To declare with certainty if prenuptial agreements are associated with divorce, there is not enough credible evidence. Depending on the disputes that develop in a person�s marriage and how the two spouses handle them, any of the two spouses may decide to obtain a divorce or not. Having a prenuptial agreement in place can help them avoid having the court divide their assets for them in the event that they do get divorced, saving them time, money, and misery.

A new couple who benefits from the financial security and reassurance of a prenuptial agreement could even encourage others to feel comfortable giving them money since they have decided to ensure the reliability of their asset distribution. When there is no guarantee that these assets won't end up in the hands of the in-laws in the event of a divorce or the passing of the spouse who is the actual beneficiary of the prenuptial agreement, estate attorneys report that there is a trend of opposition to establishing unconditional inheritance provisions for children and grandchildren. In this way, having a prenuptial agreement in place may help to ensure that a young couple will gain more from trust or inheritance arrangements.

In light of this, setting up a prenuptial agreement meeting with a competent attorney for a young pair who are still "finding their way" economically may prove to be one of the most appreciated wedding registry presents a relative could provide. It may turn out that what initially appears unromantic, overly realistic, or even superfluous is the greatest gift of security.

A prenuptial agreement need not be difficult to draft. A prenuptial agreement can give both couples financial stability and peace of mind before the marriage with only a modest time commitment. Yet prenuptial agreements are not airtight and not always enforceable in a court of law. The creation and execution of prenuptial agreements increasingly raise significant international legal difficulties as more people considering marriage consider marrying people from other countries or residing in more than one country.

As a result, it will be more crucial for professionals and judges to comprehend the substantive laws of each nation or state concerned as well as the doctrines applied to settle disagreements over international jurisdiction and the applicable law. These questions are still valid areas of research and need greater clarification to improve the application of the prenuptial agreement.

Furthermore, although it is common knowledge that having a prenuptial agreement is advantageous, many people are still hesitant to obtain one because they fear their future spouse will view it negatively. However, specialists in divorce mediation claim that a prenup is advantageous for all parties, not simply the one making the request.

Common Queries Resolved
  1. What is a prenuptial agreement?
    A prenuptial agreement, sometimes known as a "prenup," is a legal contract created by a couple before to marriage that specifies how their assets would be split in the case of divorce. In a conventional prenuptial agreement, assets such as property, debts, and income are often addressed to help couples prevent any financial surprises if the relationship were to end in the future. When one spouse already possesses more assets than the other, or is expected to do so in the future, prenuptial agreements are more likely to be made. For instance, people who inherit a lot of money, landowners, company owners, couples getting married later in life, or those who could be starting a second marriage.
  2. What purpose does a prenuptial agreement serve?
    The main goal of a prenuptial agreement is to provide couples clarity on how their assets would be distributed in the event of a breakup, and the specifics depend on the persisting situation.

    Common prenuptial agreement clauses include:

    • safeguarding a child's inheritance or particular assets
    • safeguarding inherited funds, property, or savings
    • allowing both of them to have a role in how assets are divided if they decide to get divorced
    • allowing one partner to maintain complete ownership of the company
    • defending a person against their spouse's debt.
  3. Why is a prenuptial agreement necessary?
    If a person wants to decide how their property and finances will be handled throughout their marriage and what will happen to them if they get divorced, they might think about signing a prenuptial agreement (commonly called a prenup) before they get married. The same process may be used to create a pre-registration agreement if they�re starting a civil partnership. In the case of a divorce, a prenuptial agreement can assist them in protecting their and their spouse's money. Prenuptial agreements provide some predictability in situations where they would want to decide in advance how their assets will be divided in the event of a divorce rather than relying on the judgment of the courts.
  4. What information ought to be in a prenuptial agreement?
    Prenuptial agreements are made to meet the needs of both their and their future spouse and are used to safeguard a variety of assets. Typically, they will include a list of all of their assets as well as information on how they both want them to be handled throughout their marriage and how they will be divided if their relationship ends. Their prenuptial agreement should include any assets that they would like not to have divided or shared between them and their spouse in the event of a future divorce. Typical prenuptial agreement provisions include property held in either joint or sole names, accumulated savings in bank accounts, enhanced bonding, inheritance, shares and stocks, a pension fund, income, business objectives

    Making a list of all the assets they hold, both individually and jointly, and deciding how they want them to be handled in the case of divorce are two of the best places to start when drafting a prenuptial agreement.

    The spouses can specify how the assets will be divided if one partner maintains them, and how much of each one will go to each spouse when they sign a prenuptial agreement. In the case of a divorce, a prenuptial agreement might stop their spouse from automatically inheriting a portion of their assets.
  5. What is prohibited from being in a prenup?
    Premarital agreements can cover a variety of assets, but there are stringent limitations on what can be included. Prenuptial agreements may not be accepted seriously in court if these are not taken into account before signing.

    The following topics cannot be included in a prenuptial agreement, custody of the child, including visits, education, upbringing in religion, child assistance, private issues, and unfair or illegal practices.
  6. Can a prenuptial agreement save one�s pension?
    One can safeguard this with a prenuptial agreement since many people who get married later in life or a second time do not want to risk losing any of their pension in a divorce settlement.

    Does a prenuptial agreement safeguard potential future income?
    Yes, one may include a future income clause in their prenuptial agreement if they wish to safeguard any potential future income.
  7. How long is a prenuptial contract effective?
    A prenuptial agreement is a legal compact between a person and their future spouse that is valid for the whole term of their union.
  8. Are prenuptial agreements enforceable?
    Yes, they are enforceable by the U.S. courts of law, but these are not airtight agreements and are enforceable as per the court�s interpretation.
  9. How successful are prenuptial agreements?
    Prenuptial agreements are extremely useful for anybody who wishes to safeguard whatever assets they bring into a marriage and are not only for the wealthy and famous.
  10. Is it possible to change one�s prenuptial agreement after being married?
    Once it has been agreed upon or after a person gets married, a prenuptial agreement cannot be changed. If a person wishes to modify the conditions, postnuptial agreements are an excellent choice. Although it was drafted after marriage, it is handled legally in the same manner as prenuptial agreements.

When should a prenuptial agreement be signed?
A prenuptial agreement must be executed at least 28 days before the wedding, and both parties' financial situation should be stated.

When will a prenuptial agreement not be upheld by the court?
A prenuptial agreement must be deemed fair to both parties in order for the arrangement to be sustained in court. This requires both of the spouses to completely disclose their financial situation and seek impartial legal counsel on their agreement.

Some of the aspects that will improve a premarital agreement's chances of being sustained in legal proceedings are:
  • It has to be publicly accessed.
  • The repercussions must be understood by both parties.
  • It shouldn't be unjust and should uphold the parties' agreement within the current conditions.
How can one create a prenuptial agreement?
For the court to give a person�s premarital agreement the greatest chance possible, both parties to the marriage must seek independent legal counsel and have a prenuptial agreement prepared by a licensed family law specialist. Understand the contract in full and voluntarily sign it; thoroughly revealing all of their assets and property.

Can prenuptial agreements increase the chances of a future divorce?
It might be easy to assume that one�s significant other does not believe in the marriage if they ask the signing of a prenuptial agreement. Yet, there is no substantial data to support the argument that prenuptial agreements lead to a greater chance of divorce. a couple's chance of divorcing will depend on how they see their prenuptial agreement, their marriage, and the risk of divorce. A prenuptial agreement is purely a safety net for the appropriate distribution of possessions between partners in the case of a divorce.


Disclaimer: The information contained in this post is provided for informational purposes only, and should not be construed as legal advice on any subject matter. Kindly seek legal or other professional advice since the contents of this post contain general information and may not reflect current legal developments or address your situation. The author of this post accepts no liability from the contents of this post.

  1. Uniform Premarital Agreement Act, Legal Information Institute, (last visited July 6, 2023).
  2. Civil Practice And Procedure, 2022,� 61.079, Act of Florida, 2022 (United States),
  3. Uniform Premarital and Pre-Civil Union Agreement Act, 1989, � 37:2-31, C. 89, Act of New Jersey, 1989 (United States).
  4. Code of Virginia, 1950, ch 8, Act of Virginia, 1989 (United States),
  5. Family Code, 1992, art. 2, Act of California, 1992 (United States).
  6. Uniform Law Commission, (last visited July 16, 2023).
  7. 764 N.E.2d 950 (2001).
  8. N.Y. Prenup Battle Winner 'Destroyed' Family With Affair, Cousin Says, ABC News, (last visited July 12, 2023).
  9. 135 S.Ct. 2584 (2015).
  10. 557 N.W.2d 778 (1997).
  11. 545 N.W.2d 252
Written By: Tejaswini Kaushal, 2nd year B.A. LL.B. (Hons.) student, Dr. Ram Manohar Lohiya National Law University, Lucknow, Uttar Pradesh

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