In contrast to the civil law of Europe, Anglo-American law provides prenuptial agreements, where the general procedure requires installing capacity of the parties, freedom of expression, witnesses to certify the agreement and any special requirements not being shown. At its core, prenuptial agreement does not restrict the rights and responsibilities of the signatories, but it gives the right in the future in the event of litigation to cancel it completely or change it in certain circumstances.
In the U.S., case law is quite flexible about legalizing both prenuptial and marital agreements (contracts). For example, in some states, the content of such agreements can not include alimony relationship and the rights that deny parental right to communicate with the child or fully exempt him from participation in the costs of maintenance, training and education of the child.
It is known that prenuptial agreement is the agreement of the persons entering into a marriage that determines property rights and responsibilities of spouses in a marriage, and (or) in case of divorce.
Married or persons intending to get married are given the right to choose which legal regime of property should be set in the contract. Selection covers a wide spectrum of legal regime of property: from the legal regime of complete separation of property up to the full legal regime of community of property.
Spouses may agree that:
- property acquired by both before marriage and in marriage is the personal property of each spouse (legal regime of complete separation of property);
- property acquired by each spouse before marriage is their own personal property, but at the moment of registration of marriage it becomes a joint property (full legal regime of community of property);
- property acquired during marriage is a common private property of the spouses.
However, this does not mean that the couple must apply one legal regime for the whole of their property. The couple has an opportunity to establish a mixed legal status of the property, according to the benefits of the above mentioned legal regimes (Krause et al.).
Spouses in a prenuptial contract can establish a legal regime also for the existing property, and the future property.
It should be noted that the legal regime of the property is not the only subject considering which spouses can install the regime in the contract. Spouses can establish the rights and responsibilities associated with the property management (how the couple will use the assets shared or owned by one of them, how one spouse will be informed of contracts that the other spouse concludes that do not require a special written permission and signatures), the rights and obligations pertaining to the maintenance of each other with regards to participation in meeting the needs of the family and the payment of expenses (which expenses, and what part of them will be paid by each spouse). In the contract, spouses may also set the method and procedure of the division of property in case of divorce, and other issues related to mutual legal relationship of the spouses.
Provision by premarital contract of rights and obligations of spouses can be limited to a certain period (the period is specified by calendar date, in years, months, weeks, days, hours, indicating a specific event, which is unavoidable, for example, if the couple reaches a certain age). After expiration appears, the rights and responsibilities of spouses stipulated in the agreement are subject to change or termination.
Prenuptial contract protects future spouses against unforeseen court decisions in case of divorce. Lawyers encourage their customers to have an agreement if one or both of the future spouses own their own businesses, premarital property of valued character and they want to retain the property in case of divorce. As circumstances may change and one of the spouses can find high-paying job, buy a house, or win the lottery. Prenuptial agreement is also a chance to maintain friendly relations after divorce.
Court usually with approval refers to such agreements, if not detected, that the contract promotes the early divorce. For example, when large alimony payment in case of divorce is provided, or when unfair material relations between spouses are created, and when the acquired property is distributed in favor of one of the spouses, when a lawyer is not allowed to represent the interests of the “disadvantaged” spouse. Moreover, the court does not approve the regulations, which specify aspects of intangible nature. For example, one spouse can not have any claims to the other failures out the trash on Sunday, if the latter did it on Tuesday, despite a recorded position in prenuptial contract (Enforceability of Prenuptial Agreements).
Does every couple should have a prenuptial agreement, depending on the circumstances of life and material well-being of each participant? Some prefer to have it in order to more clearly envision of the intentions and expectations of each party and their rights in case of divorce. On the other hand, some spouses choose to have an agreement in order to prevent an unexpected court decision in case of divorce. Most often, they want to have an agreement in cases, where one spouse has a property or business, he would like to retain, or if one of the spouses has a child or children from a previous marriage, to which he would like to pass in the future some part of his fortune.
There is a “model” legislation that gives legal guidance on how prenuptial contract should be drafted. This legislation is approved by some states (including New Jersey, but not including New York City). It addresses issues, such as ownership and management of the property and its distribution after divorce, alimony, inheritance and wills, life insurance. In some states, relation to such matters may vary. Thus, the California court can appoint other terms of payment of alimony, than those provided in the premarital agreement. Or, for example, in Maine, any prenuptial contract is automatically canceled after one and a half year after the child was born (if a contract extension is not explicitly stated). But in every state, contract provisions regarding child support are not allowed to be final. Court has a right to review these provisions (The Lorenzana Law Firm).
The courts do not approve parts of agreements, which stipulate intangible aspects, such as who will take out the garbage, or where a husband or wife will be employed. Also, it is not allowed to specify the rights of children, the conditions of their material support or custody in divorce cases. Interests of the third parties can not be included in the contract.
Prenuptial contract comes in force at the time of marriage. People often search for a model contract, which does not really matter. In fact, for each pair, it is better to make their own individual contract, properly prepared by the lawyer. Prenuptial agreement should include all the formalities, such as an act of transferring the real estate, otherwise contract will be recognized as invalid.
Drafting of such an agreement requires knowledge of the laws of the state. Error in preparation of the contract may result in the recognition of it as invalid by the court. For this reason, it is important that the agreement was either entirely made up or examined by lawyer before the future spouses will sign it.
Practice shows that prenuptial agreements are especially useful in cases, where one party is marrying for the second or the third time, and, in particular, if there are children from previous marriages (Larson). Inheritance law provides that in the absence of a will, the property automatically becomes the property of the widowed spouse, in connection with such provisions, children from a previous marriage can be left with nothing. Prenuptial agreements guarantee transfer of certain property or personal items (fully or partially) to children or grandchildren from previous marriages, and not to the current spouse.