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What is an Antenuptial Agreement?

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  • Written By: Tricia Ellis-Christensen
  • Edited By: O. Wallace
  • Last Modified Date: 19 November 2016
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An antenuptial agreement is better known to most as the prenuptial agreement. This is a legal contract entered into before a marriage that stipulates certain details about the marriage and what would happen if the marriage is dissolved. Most frequently, the agreement outlines specific financial matters, but some antenuptial agreements will also govern marital behavior like fidelity or define financial risks should certain behaviors occur.

Opponents of the antenuptial agreement argue that it begins a marriage by discussing a divorce. Despite what may be a bit of cold water in the face of romantic love, many lawyers cite many reasons for having a prenup, especially since people may enter a marriage from inequitable financial backgrounds. When one member of a couple has significant funds or huge debt, and the other doesn’t, making sure that a fair division of assets would occur after marriage can make a lot of sense, and regional law doesn’t always define this in a fair way. The goal of the antenuptial agreement is merely to build in basic equity in most cases, should a divorce occur.

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One scenario where an antenuptial agreement may be needed is when a marriage will create a complex family structure. Someone with children who should inherit a certain amount of funds or property may ask a fiancé to sign a prenup that protects the inheritance. More exotic requests that have little to do with property dispensation sometimes make it into prenups of more complex types. These could include automatic financial penalties for cheating, define the appearance or weight standards of either member of the couple, agree upon total number of children, or specify exactly how often intercourse is expected.

Usually, more standard issues form the basis of the antenuptial agreement, and attorneys skilled in this area of the law are typically the best suited to prepare these agreements. A poorly written or “canned” prenup that is taken from the Internet doesn’t always hold up against state laws. Each region usually has its own tests to weigh the merits of a prenup if divorce should occur, and there must be proof that both people voluntarily agreed to the terms, and that no term is considered unconscionable. Employing a knowledgeable attorney familiar with regional laws helps to brush aside any question as to whether the agreement is legal.

The opposite of an antenuptial agreement is the postnup agreement. This is a contract signed after a couple has already married. Some find these are useful to resolve any residual issues of how finances will be addressed if a divorce should occur. Strong prenups and postnups can be voided, but usually only if both members of the couple consent to void the contract. Some people do this after having been married for many years.

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