Premarital Agreements

Premarital agreements are contracts made before marriage that outline how property and debts will be handled. For these agreements to be valid, they must be in writing, signed by both parties, and entered into voluntarily, which often requires that each party has independent legal counsel or waives that right and waits at least seven days before signing. Additionally, any waivers of spousal support are not enforceable if one party did not have legal representation or if the agreement is deemed unconscionable at the time of enforcement.

Alice and Bob decide to create a premarital agreement before their wedding. Alice has her own attorney review the agreement, while Bob waives his right to independent counsel and signs the agreement just two days after receiving it. Later, Bob tries to enforce a spousal support waiver, but it is found to be unenforceable because he was unrepresented and did not wait the required seven days. Therefore, Bob cannot enforce the waiver.

Premarital agreements need writing, waiting, and wise counsel to be valid.

Exams often present scenarios where one party is unrepresented or signs too quickly, leading students to overlook the enforceability issues that arise from these facts. Students may also misinterpret the requirement for independent counsel as optional in all cases.

Questions typically involve fact patterns where one party's lack of independent counsel or a rushed signing process raises issues about the validity of the premarital agreement. Look for clues about timing and representation to identify potential pitfalls.