There are many factors that can effect the legality of a prenuptial agreement. Couples should consult their respective attorneys to go over state and federal laws that may apply to their circumstance. In addition, if they get married in another country, they will want to be sure that those laws do not conflict with their local laws.
A conflict of laws can cause difficulties should the contract need to be enforced. In addition, couples will want to be sure that their prenuptial agreement has strong language as to avoid any confusion about what was meant when they wrote the contract. Unclear or ambiguous language can make the contract difficult to enforce.
Also, couples will want to be sure that the prenuptial form contains only clauses that are legal. Any time a written contract contains illegal clauses, there is a chance that the whole contract will be invalidated by the courts. The contract must be in writing and it must be signed willingly by both parties. Preferably, the signing of the contract will be witnessed by parties in the legal system, such as lawyers or a notary public.
State versus Federal Laws
Most state’s laws regarding prenuptial agreements are similar. Prenuptial laws are pretty standard throughout the United States. In some cases, there may be differences regarding what each spouse is entitled to by entering into marriage. For example, some states automatically allow for shared assets and property, once the couple is married.
In this case, a prenup would be necessary to obtain and hold onto, individual property rights once the marriage has taken place. In addition, a post nuptial agreement may allow for a spouse to have individual rights over the assets of a business or career started after the marriage took place.
While each state may have individualized rules regarding rights of marriage, most state courts will uphold any prenuptial agreement that is legal and reasonable. However, courts can easily override a prenuptial agreement that does not abide by strict standards. They will not uphold any contract that is not in writing, unless both parties agree to the clauses. Courts will certainly not uphold any contract that is deemed unconscionable.
In other words, they would not withhold all assets from one individual in order to award them to another. They would not allow one individual to take every single asset.
Laws of Other Countries
Many countries will legally uphold prenuptial and post nuptial agreements. However, each country will have its own laws regarding what constitutes a legal clause and what is not allowed in the contract. For example, some countries may allow for custody issue clauses in a prenuptial agreement. However, the United States forbids custody issues from being outlined in a prenuptial agreement.
In the United States, issues of custody and any issues regarding children, will be decided by the courts for the best interest of the children. U.S. courts will not award custody based on a prenuptial agreement alone. However, some countries allow for custody issues to be determined before the children are even born. There are also countries that do not legally allow for prenuptial agreements, but sometimes uphold them anyway.
For example, the United Kingdom has traditionally held prenuptial agreements to be in conflict with the rules of their society. However, the courts there have upheld many prenuptial agreements, regardless of public policy. Each country will have its own rules regarding prenuptial agreements and divorce.
Couples should consider the laws or their country of residence, as well as the homeland of their spouse. Also, couples that get married in another country, should consider the laws of that country, in case they conflict with the laws of the U.S.
Strength of the Agreement
The strength of an agreement is based on several issues. Each clause in the contract, must be clear, concise and legal. If any illegal clause is located in the contract, the entire contract may be invalidated by the courts. However, if a contract is clear and concise, it can protect each spouses interests.
In fact, alimony and property have been denied to spouses because of the strength of a prenuptial agreement. While couples want their prenuptial agreements to be strong, they also want to consider the finality of the contract before signing it. While judges will invalidate unfair contracts, they will uphold strong contracts that are clear and concise. Each spouse should consider the realistic implications of each clause and be sure that it will not adversely effect them in a way that prohibits their financial survival.
Purview of Prenup
There is a small list of issues that may be legally included in a prenuptial agreement. The list includes division of property and assets. For example, a couple may have a clause that divides all assets equally in the event of a divorce.
This clause would probably be held valid and legal by the courts. However, if a couple were to have a clause that gave all property to one spouse in the event of a divorce, the court would likely invalidate the prenuptial agreement. While alimony issues may be included in the contract, they cannot be excessive or forbidden. For example, a court may negate a contract that says a wife cannot collect alimony.
The courts may override an alimony clause because the wife has stayed home throughout the marriage in order to raise the children. The court is likely to award an amount equal to the salary she would have made in the workforce. Even if clauses are legally allowed in a prenuptial agreement, the court may overrule them.