Couples who are planning to marry may enter into agreements, called premarital or antenuptial agreements, determining their rights when the marriage is dissolved by either the death of one of the parties or by divorce. Traditionally, these types of agreements were not enforceable in the divorce situation, but in recent years it appears that all states will now give at least substantial consideration to such agreements in that setting as well.

Premarital agreements usually cannot be used to legally bind the parties as to the manner of their interaction while their marriage is ongoing. As noted previously, the courts are generally unwilling to intervene between the parties in an ongoing marriage. While provisions for the manner in which the parties intend to live their married life may be useful to them as a reminder of their premarital intent, the courts will not compel the other party to adhere to such agreements.

However, when a marriage ends, premarital agreements are given substantial weight. The general view is that the party claiming the benefit of the agreement disclosed their assets and earnings to the other party and the other party was not placed under undue pressure to sign the agreement, the premarital agreement should be enforced.

  • In some states, enforcement of the agreement will be denied if it was deemed “unfair” at the time the agreement was entered into.
  • At least one state requires the agreement to have been fair both at the time it was entered into and at the time it was enforced.

Premarital agreements are generally entered into by those with substantial assets or those who have children from a previous marriage whose interests they wish to protect. The second situation does not usually create unfairness, but the former may. The less endowed spouse may become dependent on the resources of the spouse during the marriage, and it seems unjust to compel that person to readjust their lifestyle after a marriage of substantial duration.