What is a Premarital Agreement?

A premarital agreement is a legal contract that two parties enter into before they get married. It dictates what will happen to money and property in the event of divorce or death. Such an agreement is common if the marriage is a second or third marriage and one of the parties wishes to protect children or heirs from a previous marriage.

Generally, a premarital agreement is drawn up by attorneys representing either the future husband, the future wife, or both. Usually, each spouse has his or her own attorney. The contract dictates exactly what will happen in given situations.

For example, the contract may dictate that a person is entitled to keep all of the money he brings into the marriage, except for a predetermined settlement amount. The contract may also stipulate what will happen in the event that one party is adulterous or exhibits any other undesired behavior in the context of the marriage. Most prenuptial agreements specify what will happen if there are children as well, in terms of payment of child support and other obligations.

For the most part, the court will enforce a premarital agreement made between two consenting adults. There are limitations, however, to what the court will enforce. For example, public policy dictates that parents must support their children, so the court will not enforce a premarital agreement in which one spouse is made completely exempt from child support.

Other limitations may exist on the court's enforcement of a premarital agreement as well. If the court views the agreement as egregiously unfair — called a contract of adhesion — and believes that one party was coerced into signing, for example, the court will not enforce the agreement. In general, however, even a one-sided or unfair agreement will be enforced as long as both parties read it and willingly consented to it.

A premarital agreement may be advisable for those who want to control the distribution of assets in the dissolution of the marriage. Instead of the court or the laws of the state — such as community property laws — dictating what occurs, this agreement will provide the terms of divorce. This can allow a person to protect his or her assets and can make him more comfortable entering into a marriage without fear of suffering great financial loss as a result.