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A prenuptial agreement, antenuptial agreement, or premarital agreement, commonly abbreviated to prenup or prenupt, is a contract entered into prior to marriage or civil union by the people intending to marry. The content of a prenuptial agreement can vary widely, but commonly includes provisions for division of property and spousal support in the event of divorce or breakup of marriage.,
In some countries, including the Netherlands, the prenuptial agreement not only provides for the event of a divorce, but also to protect some property during the marriage, for instance in case of a bankruptcy.Many countries, including Canada, France, Italy, and Germany, have matrimonial regimes, in addition to, or some cases, in lieu of prenuptial agreements.As of 2007, England and Wales do not enforce prenuptial agreements, but agreements may be upheld at the judge's discretion. These countries also do not have a provision for marital regimes.
There are two types of prenuptial agreements: marriage contract for people who are married or about to be married, and cohabitation agreement for unmarried couples. A variation for people who are already married is a postnuptial agreement, also called a postmarital agreement.
Laws vary between both states and countries in both how to draft them and in whether they will enforce such agreements.Historically, judges in the United States frowned upon prenuptial agreements as corrupting what marriage was supposed to stand for, and often they would not recognize them. Nowadays they are recognized, although they may not always be enforced. Both parties should have lawyers represent them to ensure that the agreement is enforceable. In some cases, the parties retain a private judge to be present during the signing, to be sure that neither party has been coerced into the agreement. Some attorneys recommend videotaping the signing, although this is exceptional. Some states such as California require that the parties be represented by counsel if spousal support (alimony) is limited.
Prenuptial agreements are, at best, a partial solution to obviating some of the risks of marital property disputes in times of divorce. They protect minimal assets and are not the final word. Nevertheless, they can be very powerful and limit parties' property rights and alimony. It may be impossible to set aside a properly drafted and executed pre-nup. A pre-nup can dictate not only what happens if the parties divorce, but when they die. They can act as a contract to make a will and/or eliminate all your rights to property, probate homestead, probate allowance, right to take as a predetermined heir, and the right to act as an executor and administrator of your spouse's estate.Under the Statute of Frauds, a prenuptial agreement is only valid if it is completed prior to marriage. After a couple is married, they may draw up a post-nuptial agreement.
In the United States, prenuptial agreements are recognized in all fifty states and the District of Columbia. Likewise, in most jurisdictions, five elements are required for a valid prenuptial agreement:
- agreement must be in writing (oral prenups are always prohibited);
- must be executed voluntarily;
- full and/or fair disclosure at the time of execution;
- the agreement cannot be unconscionable;
- it must be executed by both parties (not their attorneys) "in the manner required for a deed to be recorded", known as an acknowledgment, before a notary public.