A prenuptial agreement is a contract entered into by two parties before marriage. The contract normally covers property owned by either of the parties before the marriage and the disposition of that property upon divorce or death of either party. When the marital property is divided equitably during divorce, property owned by the parties separately before marriage is typically not included; if the parties have preserved and maintained separate property together, however, or if the property has appreciated significantly in value, it may have become marital property. Having a contract in place to preserve its non-marital status is the only way to ensure that the disposition of the property is as the owner desires.
The requirements for a prenuptial agreement are essentially the same as any other contract. Both parties must enter the contract freely and knowingly in good faith. Both parties must disclose their assets to the other fully and fairly before the agreement is made. “Fully and fairly” is a subjective standard and is decided based on the education and general sophistication of the parties, the objective fairness of the terms, and basically the circumstances surrounding the agreement. It is not necessary that every item owned by either party be listed specifically, but that each party be made aware of the total assets and approximate value and number thereof.
A prenuptial agreement is considered to be signed freely and without duress even if the marriage is offered only on the grounds that the agreement will be signed. The agreement should be made in writing, although in at least one case an oral agreement was honored. Of course, in that instance (Hall v. Jeffers, 767 S.W.2d 654 (Tenn. App. ES 1988)), the husband’s brother murdered the wife on the day that the two were to be divorced. Because the two parties had sworn to an oral prenuptial agreement in the divorce pleadings, the court held the agreement to be enforceable and that the husband was not a surviving spouse for purposes of the wife’s estate.
Drafting and enacting a valid prenuptial agreement can be a complicated issue and should not be undertaken lightly. If you need a prenuptial contract or have questions about a prenuptial agreement already in place, you should consult an attorney. For more information on marriage and other family law issues, click here.