Prenuptial agreements: drafting, enforceability, other factors

Last updated on April 8, 2021

Family law experts have increasingly advised in recent years that couples contemplating marriage set aside time to objectively think about planning aspects related to their assets and how they would want things to play out in the event of a marital dissolution.

Although some people criticize prenuptial agreements and postnuptial (separation) contracts on the grounds that they are decidedly unromantic and undermine a couple’s trust and love, most professionals think that such a concern is highly overstated. Aside from the certainty gained about the future that results from execution of a marital contract, many couples have found that discussing the details of such an agreement helps them articulate and come closer together on what is truly important to them in marriage.

The obvious concern surrounding execution of a marital agreement is twofold, namely this: Does it contain everything that needs to be in it and is it enforceable in a court of law?

These are very valid inquiries, given that, as one journalist who writes about estate planning notes, couples often enter marriages from different states, have property in different jurisdictions and set forth provisions that might be deemed unobjectionable in one state court and flatly against public policy in another.

The Uniform Law Commission — a group of lawyers, legislators and judges from across the country focused upon drafting contracts and laws that are uniformly aligned and enforceable in all states — has recently provided a “best practices” set of rules for premarital and postmarital contracts. The hope is that such a blueprint will be used routinely in the future.

Whether it is or not, the prescription for an effective pre- or postmarital contract is the active involvement and oversight of an experienced family law attorney in the drafting and execution of such a contract.

Source: Financial Adviser, “New prenuptial rules aim to get states on same page,” Arden Dale, Aug. 15, 2012

  • The negotiation and drafting of prenuptial and separation agreements is a central part of our legal practice. We invite readers seeking relevant information about this subject matter to visit our Alpharetta Prenuptial and Separation Agreement page.

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