What is a Prenuptial Agreement?

Prenuptial agreements were once thought of as the exclusive province of the “rich and famous.” During the past twenty years, however, there has been an explosion of prenuptial agreements, and they are not limited to celebrities with recognizable names. Prenuptial agreements are now quite common and are used by a wide variety of clients. They are becoming a more significant part of matrimonial practice as people treat their relationships in a more pragmatic fashion, adopting more realistic and less romantic views of their relationships than they may have had previously.

Most clients and many attorneys do not understand the complex issues one confronts when attempting to draft prenuptial agreements. Generally, family law attorneys spend their time dissolving partnerships. Prenuptial agreements involve the formation of partnerships. Thus, it is the opposite of what the matrimonial attorney ordinarily does. Instead of focusing on the end of the marital relationship, the lawyer and parties must focus on the beginning of the relationship.

Prenuptial agreements are most often employed where (1) one or both of the parties have children from an earlier marriage and want to protect the inheritance rights of the children, (2) one of the parties has much more income or property than the other, (3) both parties have significant income or property, (4) both parties are likely to acquire significant income or property in the future, or (5) increasingly, I see greater interest in prenuptial agreements from those who have already been through a difficult divorce. Perhaps part of this can be attributed to the old adage that those who do not learn from their mistakes are bound to repeat them.

So what exactly is a prenuptial agreement supposed to do? Its purpose is to establish the parties’ agreement concerning the disposition of certain property in the event of death or divorce in a format that will be binding on both the parties and upheld by a court. The Tennessee Court of Appeals has described prenuptial agreements as being

conducive to the welfare of the parties and the best purpose of the marriage relationship, and to prevent strife, secure peace, adjust rights, and settle the question of marital rights in property, thus tending to remove one of the frequent causes of family disputes—contentions about property . . . .

Basically, a well-drafted, enforceable prenuptial agreement prevents costly, protracted, and anxiety-inducing litigation in the event of divorce or death by determining the disposition of certain assets in advance. There is no one-size-fits-all prenuptial agreement, which is just one of the many reasons why “form” agreements available online should be avoided at all costs. Some agreements protect certain assets in the event of divorce, while others provide in advance for an equal division of property. Each prenuptial agreement must be customized to fit the particular terms of the parties’ agreement.

The big question concerning a prenuptial agreement is whether a court will enforce it (see comment above re online forms). In order for a prenuptial agreement to be valid in Tennessee, the court must find that it was “entered into by [the] spouses freely, knowledgeably and in good faith and without exertion of duress or undue influence upon either spouse.” This requires proof of many things, including that each party be given a clear idea of the nature, extent and value of the other party’s property and resources. Although representation by an independent lawyer is strong evidence that a party has entered into a prenuptial agreement voluntarily and knowledgeably, the presence of counsel is not dispositive.

I strongly encourage prenuptial agreements for nearly every marrying couple. By taking the time to craft a prenuptial agreement at the beginning of the marital partnership, parties can avoid much of the pain and difficulty likely to occur should that partnership come to an end without a prenuptial agreement. I deal with parties every day who wish they had obtained a prenuptial agreement and have yet to meet the divorcing party with a prenuptial agreement who regretted having one.

Information provided by K.O. Herston: Knoxville, Tennessee Matrimonial, Divorce and Family Law Attorney.

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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