Premarital Agreement FAQs: What You Need to Know

After you've been through a divorce once, getting a premarital agreement before you marry again is probably a good idea. For example, this type of agreement can help protect the property you bring into a marriage, as well as set out some of the ground rules for property division if you divorce in the future. Keep reading to find out more...

An Attorney's Comments on Prenuptial and Premarital Agreements

by Attorney John K. Grubb 

Many people do not enter into a prenuptial agreement because they believe that it will never hold up in court. This is not true. Prenuptial agreements are now routinely upheld by courts. Most states have adopted the Uniform Premarital Agreement Act which can be viewed at the Uniform Law Commission website.

Looking closely at the wording of the Uniform Premarital Agreement Act, most courts have concluded that only in truly extraordinary circumstances would they refuse to uphold a premarital agreement.

What does a prenuptial agreement do?

A prenuptial agreement should cover whatever you and your spouse want to set forth in writing about your financial affairs. Typically it will provide that the property you brought into the marriage will remain as your separate property, along with the income thereon.

Frequently in today's double-educated marriages, both parties have good earning capacity, and they wish to provide that their income is to remain separate property. It can provide for housing, alimony, death benefits, estate provisions, or any other reasonable provision that two parties think is necessary to put them on solid ground.

Can you do your own prenuptial agreement?

Yes, and you can do your own appendectomy, your own automobile repairs, fly an airplane for the first time on your own with no training (if you can find anybody foolish enough to rent you one), and do many other things for the very first time on your own. Unfortunately, doing your own prenup is about like trying to do an appendectomy on yourself --- it's probably not going to end well.

Can any attorney do a prenuptial agreement for us?

Yes. However, like many things in life, there is a trend toward specialization or limiting one's practice. Some attorneys are more familiar with prenuptial agreements than others.

Additionally, most attorneys cannot do an agreement for both parties. There is an inherent conflict of interest in representing both parties. Typically one party will hire an attorney to do a prenuptial agreement, and that attorney will then send it to the other party and the other party can secure the services of his or her own attorney, or choose not to secure the services of an attorney.

Can a premarital agreement be changed?

If you leave something out, a prenuptial agreement can be amended or modified in the future. Most agreements provide that they may be modified only in writing. This is to eliminate any misunderstandings.

Premarital agreements are like any other legal contract, and every now and then somebody gets the smart idea of trying to commit fraud upon their spouse.

For example, say a couple has been married for 30 years and have a prenuptial agreement. One spouse is secretly considering a divorce and entices the other party into changing the original agreement. Once the original agreement is changed, he or she promptly files for divorce. In this situation, the party secretly contemplating the divorce can probably expect to hear that the amendment or change was obtained as a result of fraud and should not be enforced by the court.

Keep in mind when you step in front of a court, judges do not generally like people who commit fraud. 

With over 40 years of experience in family law, John K. Grubb assisted clients in the Houston area with divorce and other family law issues. John is now retired.

Below you can find other articles on prenuptial and post-nuptial agreements that will provide more information: