A premarital agreement (sometimes referred to as a “prenuptial agreement”) is a contract entered into between two people prior to their marriage. Before marriage, a couple may contract with respect to property rights, alimony, inheritance, and which state’s laws will govern the enforcement of the agreement in the event that their marriage ends in divorce.
In Nebraska, premarital agreements must be in writing and signed by both people. Because the agreement is made in contemplation of marriage, it only becomes effective upon marriage. Premarital agreements are treated as ordinary contracts.
Generally speaking, people may include provisions in their premarital agreement regarding anything they want. However, if there is a divorce, the issue then becomes whether the premarital agreement is enforceable.
There are two main ways to contest the enforceability of a premarital agreement. First, one spouse may argue that he or she did not sign the agreement voluntarily. A spouse may claim that he or she was forced to sign the agreement and did so under duress. The court will consider when the agreement was signed in relation to the marriage. Was it on the eve of the wedding or months before? The closer the agreement was signed in relation to the wedding, the stronger an argument a spouse may have of signing under duress.
Another way to challenge the enforceability is to argue that the agreement is unconscionable – that is, the agreement is so unfair to one spouse that it “shocks the conscience” and goes against public policy. For instance, if one spouse fails to disclose all his assets such that enforcement of the premarital agreement would be unconscionable, the agreement may be unenforceable.
In regards to alimony, people may agree to waive alimony in their premarital agreement, but this will only be enforceable to the extent that it keeps both spouses off public assistance. If enforcement of the premarital agreement impoverishes one spouse and that spouse will need public assistance, the provision regarding alimony may be deemed unenforceable.
It is important to note that provisions regarding your children will almost always be deemed unenforceable. Courts will look at the best interests of the child during your divorce, not at what your premarital agreement states.
If enforceability of your premarital agreement is an issue in your divorce, your judge may also consider whether each spouse had his or her own lawyer at the time the agreement was signed. If you are thinking about signing a premarital agreement, it is also advisable to have a skilled family law attorney review the document first.
If you are getting a divorce and have a premarital agreement, make sure your family law attorney has a copy of the agreement. Be sure to provide your lawyer with a detailed history of the facts and circumstances surrounding reaching and signing the agreement. Your family law attorneys at Koenig│Dunne will be able to advise you regarding how your premarital agreement may affect the dissolution of your marriage.