Also known as: antenuptial agreements · prenuptial agreement · prenup · premarital agreement
Written by attorneys · grounded in primary & secondary sources — see below
An agreement between prospective spouses that affirms, modifies, or waives marital rights or obligations during the marriage or at separation, marital dissolution, or death of one spouse. The agreement must be in a signed record. Courts may refuse enforcement of a term that was unconscionable when signed or that would cause substantial hardship due to a material post-signing change in circumstances.
Arthur Abrams and Amber Alonzo signed an antenuptial agreement waiving spousal support. Five years later Amber lost her high-paying job due to industry changes and faced public assistance eligibility. The court refused to enforce the waiver term because enforcement would cause substantial hardship from a material change in circumstances after signing.
Adam Anderson and Audrey Ashton entered an antenuptial agreement before marriage. Upon dissolution the court considered the agreement when equitably apportioning property acquired during the marriage without regard to marital misconduct and factoring in each spouse's contributions and needs.
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Albert Allen and Andre Antoine lived together under an oral agreement allocating earnings and property. After separation a court enforced the agreement because it was not inseparably based on sexual services, treating it with the same contractual force given to antenuptial agreements between married couples.
A.Z. and B.Z. signed an antenuptial-style agreement addressing disposition of frozen embryos upon divorce. The court declined to enforce the agreement's terms because they implicated public policy concerns over procreation that could not be resolved by contract alone.
Arthur Abrams placed assets in an inter vivos trust and later married. His surviving spouse claimed an elective share. The court held that the antenuptial agreement did not automatically defeat the claim because the trust assets remained reachable under principles protecting spousal statutory rights.
A court may refuse enforcement if the term was unconscionable at signing or if enforcement would cause substantial hardship due to a material change in circumstances after signing. The court decides unconscionability or hardship as a matter of law.
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No. A premarital agreement is enforceable without consideration when it is in a signed record and meets the other statutory requirements.
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The court must consider the antenuptial agreement when equitably apportioning property. The agreement may limit or preclude modification of its terms except as to child support, custody, or visitation.
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Yes, but the waiver is unenforceable if it leaves a party eligible for public assistance at separation or dissolution. A court may also refuse enforcement on unconscionability or hardship grounds.
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…the subjective contemplation of the parties is uncertain and unworkable; such a test, we stated, "might invalidate virtually all antenuptial agreements on the ground that the parties contemplated dissolution ... but it provides no principled basis for determining which antenuptial agreements offend public policy and which do not." (17…