A PREMARITAL AGREEMENT--also referred to as an antenuptial
agreement--is a contract entered into by a man and woman before they marry.
The agreement usually describes what each party’s rights will be if they divorce
or if one of them dies. Premarital agreements most commonly deal with issues
of property and support, describing the property and support, if any, to which
each party will be entitled in the event of divorce or death.
Reasons for Premarital Agreements
People intending to marry use premarital agreements for several reasons, some
of which may be interrelated. Premarital agreements help clarify the parties’
expectations and rights for the future. The agreements may avoid uncertainties
and fears about how a divorce court might divide property and decide spousal
support if the marriage fails.
A man or woman who wants a future spouse to sign a premarital
agreement often has something he or she wants to protect, usually money. One
or both partners may want to avoid the risk of a major loss of assets, income, or
a family business in the event of a divorce.
People marrying for a second or third time also might desire to make
sure that certain assets or personal belongings are passed on to the children or
grandchildren of prior marriages rather than to a current spouse.
The less wealthy spouse generally is giving something up by signing a
premarital agreement. That spouse (as well as the other spouse) is agreeing to
have his or her property rights determined by the agreement rather than by the
usual rules of law that a court would apply on divorce or death. As will be
discussed later (see chapter 9), courts have rules for dividing property when a
couple divorces. In some states (such as California), courts automatically divide
equally the property acquired by the husband and wife during the marriage. In
most states, courts divide property as the court considers fair, and the result is
less predictable. The split could be fifty-fifty or something else.
If one spouse dies, co