What is a prenuptial agreement? Simply put, a prenuptial agreement, or prenup, is a contract between two people who plan to be married. Many people think of a prenuptial agreement in terms of its effect on a divorce, but a valid prenuptial agreement in DC may also come into play upon the death of one spouse, or even during the marriage to address how certain situations should be dealt with.
In other words, making a prenuptial agreement does not mean that you and your spouse are planning to divorce. Rather, it shows that you want to begin your marriage on a foundation of open communication and a shared understanding of your goals and values. There are many reasons to consider a prenup.
While any couple can benefit from the discussion and negotiation involved in the process of creating a prenuptial agreement, having a prenup is especially beneficial for certain couples, including those with children from a previous relationship, significant wealth or wealth disparities, and those who anticipate acquiring family business interests or inherited wealth during the marriage.
In order to be valid, a prenuptial agreement needs to be in writing and signed by both parties. It must be entered into before the marriage, and, like any contract, must be entered into voluntarily. As a general rule, a valid contract requires consideration, defined as a “bargained-for exchange.” With a prenuptial agreement, the marriage itself is understood to be the required consideration, and the agreement is not enforceable unless and until the marriage takes place.
In essence, a prenuptial agreement allows a couple to rewrite the law that would otherwise apply to their situation in the event of a divorce or death. They, rather than lawmakers, can decide what will work best for their needs, within certain limitations.
Couples entering into a prenuptial agreement in DC may contract regarding a number of issues, such as:
While couples may agree on many things in a valid prenuptial agreement in DC, they may not make a contract that adversely affects the right of a child to child support. Courts also will not enforce attempts to establish the custody of future children in a prenuptial agreement, since child custody and access must be determined according to the best interests of the child.
Once a couple is married, especially after the passage of some time, they may decide that their agreement as written no longer meets their needs. In that case, the couple can decide to amend their agreement or revoke it altogether. In order to amend or revoke a prenuptial agreement in DC, the parties must make a written agreement signed by both of them. Like the original prenup, the amended agreement or the revocation is enforceable without consideration. Couples can also make side agreements that govern a particular issue without having to amend the prenup in some situations.
If a couple creating a prenuptial agreement anticipates wanting to change or revoke the agreement after they have been married for a long time, they can also consider including a “sunset clause” that will terminate the agreement after a certain number of years.
A prenuptial agreement is enforceable so long as it is entered into voluntarily. The agreement must also not have been unconscionable (grossly unfair) when executed, and before signing it, the party against whom enforcement is sought must have been provided a fair and reasonable disclosure of the other party’s property or financial obligations.
If the agreement was unconscionable, and one party did not receive proper disclosure or waive disclosure, and they could not reasonably have had adequate knowledge of the other party’s finances, the other party cannot enforce the agreement. Whether an agreement is unconscionable is a matter for the court to decide.
While a prenuptial agreement can modify or eliminate a spousal support requirement, a court may still order one party to pay support to another if necessary to avoid the supported party becoming eligible for public assistance.
You should do three things to make sure that your prenuptial agreement in DC is enforceable. First, allow plenty of time to negotiate and execute the agreement—perhaps more than you think you will need. You and your future spouse will need to gather and exchange information, and negotiate terms through your respective attorneys, who will draft and redraft the agreement until it is ready. This process should be completed well in advance of the wedding, so that neither spouse can later claim they felt pressured into signing because they feared the rapidly approaching wedding would be canceled if they didn’t.
The second thing you should do to ensure your prenuptial agreement is enforceable is make a thorough disclosure of your entire financial situations, including all assets and debts. Otherwise, your spouse could later claim that the agreement is unfair and they were not provided with access to the information they and their lawyer needed to evaluate it.
The third thing you need for a valid and enforceable prenuptial agreement in DC is actually the step you should take first: retain an experienced DC prenuptial agreement lawyer. It is important that both you and your future spouse are represented by your own attorneys so that there is no conflict of interest. Your attorney will help you review your partner’s disclosures and prepare your own. Your attorney will also negotiate for you, help to draft the terms of your agreement, and make sure that you fully understand your rights and responsibilities under the prenup before signing it.
To learn more about creating a prenuptial agreement in DC, we invite you to contact Strickler, Platnick & Hatfield to schedule a consultation.