Also known as: prenuptial agreement · prenup · prenups · antenuptial agreement · premarital agreement
Written by attorneys — see sources below.
An agreement between prospective spouses made in contemplation of marriage that affirms, modifies, or waives marital rights or obligations during the marriage or at separation, marital dissolution, death of one spouse, or another event. The agreement becomes effective only upon a valid marriage and is enforceable without consideration provided it meets formal requirements of a signed record.
Pablo Perez and Pilar Pena signed a premarital agreement allocating all future earnings to Pablo. After the wedding Pablo's business failed and Pilar developed a disability requiring expensive care. When they divorced Pilar sought support despite the agreement. The court refused enforcement of the support waiver because enforcement would cause substantial hardship from a material change in circumstances after signing.
Pearl Porter and Paul Peterson signed a premarital agreement keeping all separately titled assets separate. During divorce proceedings the court considered the agreement while equitably apportioning property acquired during the marriage. The agreement influenced but did not control the final division because the court weighed duration of marriage, contributions, and needs of each party.
Phoebe Park and Philip Powell lived together for years without marrying. They orally agreed to share earnings and property acquired during cohabitation. After separation Phoebe sued to enforce the sharing arrangement. The court treated the agreement as an ordinary contract enforceable to the extent it rested on consideration other than the intimate relationship itself.
In October 1964, plaintiff and defendant entered into an oral agreement. While the parties lived together, they would combine their efforts and earnings. They would share equally any and all property accumulated as a result of their efforts, whether individual or combined. They further agreed to hold themselves out to the general public as husband and wife. Plaintiff would render her services as a companion, homemaker, housekeeper, and cook to defendant. Shortly thereafter, plaintiff agreed to give up her lucrative career as an entertainer and singer. She did so to devote her full time to defendant as a companion, homemaker, housekeeper, and cook. In return, defendant agreed to provide for all of plaintiff's financial support and needs for the rest of her life. The parties lived together from October 1964 through May 1970. During this period, as a result of their efforts and earnings, they acquired in defendant's name substantial real and personal property. This included motion picture rights worth over $1 million. In May 1970, defendant compelled plaintiff to leave his household. He continued to support plaintiff until November 1971 but thereafter refused to provide further support. Plaintiff brought this action asserting two causes of action. The first, for declaratory relief, asked the court to determine her contract and property rights. The second sought to impose a constructive trust upon one half of the property acquired during the course of the relationship. Defendant answered the complaint after an unsuccessful demurrer. Following extensive discovery and pretrial proceedings, the case came to trial. When the case was called for trial, plaintiff sought leave to file an amended complaint. The trial court treated defendant's motion to dismiss as one for judgment on the pleadings. This was augmented by a stipulation that defendant's marriage to Betty Marvin did not terminate until the filing of a final decree of divorce in January 1967. The court granted the motion and entered judgment for defendant. Plaintiff moved to set aside the judgment. She asked leave to amend her complaint to allege that she and defendant reaffirmed their agreement after the divorce became final. The trial court denied the motion. Plaintiff appealed from the judgment.
View caseProspective spouses signed a premarital agreement directing that frozen preembryos created during marriage would be donated to research upon divorce. After divorce one spouse objected to donation and sought implantation instead. The court refused to enforce the directive because it conflicted with the objecting spouse's contemporaneous right to control the preembryos.
A.Z. and B.Z. married in 1977. For the first two years they resided in Virginia, where both served in the armed forces. They underwent fertility testing after difficulties conceiving. The wife suffered an ectopic pregnancy that resulted in miscarriage and removal of her left fallopian tube. In 1980 the couple moved to Maryland for a year of additional fertility treatment that produced no pregnancy. The wife transferred to Massachusetts in 1988 while the husband remained in Maryland for schooling. He joined her in Massachusetts in 1991. After arriving in Massachusetts the wife began IVF treatments at a clinic. The couple first attempted a GIFT procedure on November 6, 1988, which produced another ectopic pregnancy and removal of the wife's remaining fallopian tube. They then pursued IVF from 1988 through 1991. Each time before egg retrieval the couple signed a clinic consent form. They executed seven such forms in total, the last in August 1991. On every form the wife wrote that the preembryos should be returned to her for implantation should the couple separate. The husband usually signed the forms while blank and before the wife completed the disposition language. The 1991 treatment produced twin daughters born in 1992, and two vials of preembryos were frozen for possible later use. In spring 1995, before the couple separated, the wife thawed one vial and had a preembryo implanted without informing the husband. He learned of the procedure from an insurance notice. Relations deteriorated, the wife obtained a protective order against the husband, the couple separated, and the husband filed for divorce. At the time of divorce one vial containing four frozen preembryos remained in storage. The husband moved for a permanent injunction prohibiting the wife from using the preembryos. The Probate and Family Court bifurcated the preembryos issue from the divorce action and held a hearing at which both parties were represented by counsel. The probate judge found the consent form unenforceable because of changed circumstances since 1991 and balanced the parties' interests, granting the husband a permanent injunction. The Supreme Judicial Court transferred the case on its own motion. On February 8, 2000, it issued an order affirming the Probate and Family Court judgment, with this opinion to follow.
View caseYes. The agreement must be in a record and signed by both prospective spouses. Oral assent or a signature by only one party fails the formal requirement even if the parties reached detailed terms.
The agreement becomes effective only upon a valid marriage. Signing alone does not trigger its operation if the parties never marry.
A court will not enforce the agreement if consent was the product of duress, such as presenting the document days before the wedding coupled with threats to cancel the ceremony or withhold benefits.
Yes. The agreement is unenforceable if one party did not receive a reasonably accurate description of the other party's property, liabilities, and income before signing.
No. When one party lacks independent legal representation the agreement must contain the required conspicuous waiver notice or plain-language explanation of rights waived, or it is unenforceable.
…of Dawley (1976) 17 Cal.3d 342 [131 Cal. Rptr. 3, 551 P.2d 323] offers a close analogy. Rejecting the contention that an antenuptial agreement is invalid if the parties contemplated a marriage of short duration, we pointed out in Dawley that a standard based upon the subjective contemplation of the parties is uncertain and…