Prenuptial agreements are written contracts entered into by couples prior to a marriage as a “safety net” to protect their assets in case of a divorce. To be valid, Tennessee law requires full disclosure of assets and liabilities of each party, and that the parties must have ample time to have the prenuptial agreement reviewed by lawyers prior to the wedding. The two most common cases where people enter into prenuptial agreements are those that involve couples who have had a previous difficult divorce and individuals with substantial estates. However, many couples choose to have a prenuptial agreement simply to alleviate uncertainty in case something goes wrong with their marriage and they end up in a divorce.
Negotiating the terms of a prenuptial agreement is complicated unless the attorney has experience drafting these documents. There are many variations in prenuptial clauses, and all prenuptial agreements are drafted from scratch based on the specific needs of the couple. Property has to be identified as separate and marital, and these definitions are different based on the needs of the couple. After the property is defined as separate or marital, the next consideration is how to divide marital property in the event of divorce; it’s not always a simple matter of who gets to keep what property. It’s important to plan for all potential outcomes when drafting a prenuptial agreement. There’s a fair amount of skill involved when writing the language for the terms, but an experienced attorney will be able to offer advice so that all relevant contingencies are discussed.
A properly prepared prenuptial agreement will address the following areas:
In addition to property division, a financially dependent spouse might need to receive alimony after a divorce based upon things the spouse may have given up in agreeing to marry. Alimony provisions that are equitable and do not financially impoverish the disadvantaged spouse are generally upheld by courts. Prenuptial agreements can make the following provisions for alimony:
Tennessee courts routinely enforce prenuptial agreement entered into freely and voluntarily; however, if there is undue influence or duress, the enforcement of prenuptial agreements is disfavored. Legal attacks of prenuptial agreements are very common. Usually difficulties don’t arise until marital problems have already surfaced. The spouse who affected most negatively by the terms of the agreement is usually the person who mounts the attack. Most successful attacks arise from negotiations were entered into unfairly or assets/liabilities were not disclosed to the negatively impacted spouse at the time of drafting. An almost certain way to invalidate a prenup is to spring it on the wedding day and force them to sign it or the wedding will not go on. Reasons that justify invalidation of a prenuptial agreement include:
Tennessee courts also reserve the right use their own discretion when children are involved. Child custody and child support are not usually negotiable as part of a prenuptial agreement. Even if provisions are made in the prenuptial contract regarding a parent’s desired outcome for his or her children, such a clause is not enforced in most cases.
Additionally, a validly negotiated alimony award may be invalidated if the amount and duration of alimony makes the financially disadvantaged spouse impoverished. There is a duty to ensure that the financially disadvantages spouse is not forced to seek public assistance because of an unconscionable prenuptial agreement.
While most people know what prenuptial agreements are and how they protect couples, common misunderstandings arise in regard to how the processes of getting a prenuptial agreement works. For an agreement to be enforced by the court with little room for attack, lots of ground will have to be covered in the original language of the document. A good prenuptial agreement will set forth, in detail, definitions of separate and marital property, what property is protected, how property is to be divided, how much alimony will be paid, and that the agreement itself was negotiated fairly and equitably. The goal of the agreement should be clear no matter who is reading it. Ideally, a prenuptial agreement is prepared by one lawyer for one spouse, and given to the other spouse to take to their attorney to review. The prenup should be negotiated well in advance of the wedding date, and, under no circumstances on the wedding day!
At Turner Law Offices, P.C., our family law attorneys have over 20 years of hands-on experience in drafting and litigating the validity of prenuptial agreements. The worst possible decision a person can make is to take matters into his or her own hands and find a prenuptial agreement online and sign it. Prenuptial agreements take specialized drafting knowledge, and one size does not fit all. Without proper legal advice from an experienced family lawyer, most people will run into problems with the validity of their prenuptial agreements. Request a Free Initial Consultation Online or call our office today to schedule your in person meeting with one of our family law attorneys to help make sure all your assets are protected.
