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Holla, “We want prenup!”

So you’re in love. You may be thinking about tying the knot with your significant other.  We’re happy for you! It’s an exciting time in your life— a time to think about future celebrations, and new adventures. This is also the right time to start thinking about entering into a premarital agreement or prenup with your future spouse. As magical as a marriage can be, it’s also fundamentally a legal agreement. Because we believe it’s important for all parties to protect themselves in any legal agreement, we’ve put together a few things you need to know about prenuptial agreements.

What is a Prenup?

“Prenup” is short for prenuptial agreement and is also called a premarital agreement in Arkansas. A prenuptial agreement is a generally enforceable method to resolve disputes upon divorce and for estate planning purposes upon death. It allows two parties who are contemplating marriage to agree to distribute their assets upon either divorce or death differently than would otherwise be provided by law, had there not been a premarital agreement in place.

Premarital agreements might be a sticky subject for many couples, but they are a great tool to plan out exactly how you want your assets to be distributed. They can save you a lot of time and money in the future, should there ever be any disputes.

Fairness

Prenuptial agreements should include full disclosures of the assets of each party. Pursuant to the Uniform Premarital Agreement Act, a premarital agreement will be unenforceable if either of these are true:

  • it was entered into involuntarily by either party
  • it lacked reasonable disclosure of the assets, and it was unconscionable at the time the agreement was executed

Voluntariness is determined by old common law principles of contract law. Just like any other contract, a premarital agreement is not voluntary if it was entered into by means of fraud or duress. Courts will look at all of the facts and circumstances surrounding the agreement to determine voluntariness.  

Independent Representation

Each party needs to be represented by their own legal counsel to ensure that the agreement is both fair and equitable. Independent representation also ensures that the agreement is less likely to be held invalid by a court should any disputes arise in the future.

Plan Early

The timing of the prenuptial agreement may also determine whether a court may consider the agreement to be involuntary.  If you are thinking about getting married in the near future, now is the time to think about the premarital agreement. You want to give ample time to go over and make sure that the premarital agreement satisfies both parties.

Waiting too long to execute the agreement may be cause for a court to later on invalidate the agreement. For example, if a couple enters into a premarital agreement a day or even a week before the couple marries, courts could find reason to deem the agreement invalid on the basis that it was rushed into and that a party may have involuntarily entered into the agreement so that their marriage would not be postponed.  

Prenuptial Agreements Do Not Apply to Custody

Prenuptial agreements can only be used to delineate the property rights of each party upon separation — not custody rights.

Courts have determined that contracting to determine parental rights is not appropriate and that custody is an issue that can only be determined at the time of separation.

We know that talking about a prenuptial agreement with your future spouse MAY not be the easiest or most romantic conversation. But it’s one of those big conversations you should definitely have before you actually tie the knot. Keep in mind that agreements are entered into because two parties are thinking about getting married — not because they are thinking about separating in the future. It’s part of making sure you are both on the same page in your marriage. And yes, reaching an agreement about property distribution now will make for less headache in the future, should a death or separation ever occur.

As Kanye broke it down for us in his 2005 hit, “Gold Digger,” a prenuptial agreement is just “somethin’ that you need to have.”

Disclaimer: While the Danielson Law Firm does not encourage anyone to take legal advice from Kanye West, in the case of premarital agreements, it’s safe to say that Kanye has it right.

 

Kanye West.  Lyrics to “Gold Digger.” Genius, 2019, https://genius.com/Kanye-west-gold-digger-lyrics.

Songwriters: Kanye West / Renald J. Richard / Ray Charles

Gold Digger lyrics © EMI Music Publishing, Sony/ATV Music Publishing LLC, Warner/Chappell Music, Inc.

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Fayetteville Law Office

(479) 935-8313

909 Rolling Hills Dr.
Fayetteville, AR 72703

Booneville Law Office

(479) 935-8060

4 Village Loop
Booneville, AR 72927

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