There is often a temptation to avoid thinking or talking about what will happen if your marriage doesn't work. It can seem like a distant and irrelevant issue while you're busy planning your big day. However, a carefully considered and well-drafted prenuptial agreement may prevent a lot of heartache if your marriage fails.
Historically judges in the US did not like dealing with prenuptial agreements, claiming that they negated the essence and fundamental meaning of marriage. Today, however, prenuptial agreements are valid in all fifty states and the District of Columbia.
Prenuptial agreements can only be drafted prior to the marriage (anything after the marriage is a postnuptial agreement) and cannot make any provisions relating to custody or access of children. It is important to remember that the prenuptial agreement will not in all cases be strictly adhered to: a court has the power to waive or ignore certain parts of a prenuptial agreement if it is found to be unfair or considers it appropriate in the circumstances. In general, they specify what will happen to property and money belonging to either spouse in the event that the marriage fails. They can also be used to protect each other from one another's debts, waive the right to future alimony or inheritance, and provide the way in which the costs of common household expenses will be divided up, amongst other things.
You can draft your own agreement, but it's still very important to ensure that you get it reviewed by an attorney before you sign it. This is because it is very important that the agreement complies with state requirements. It is also vital to know the elements of a prenuptial agreement, without which the document might be invalid.
For a prenuptial agreement to be valid it must be in writing, you must have time to read it and time to consider it before you get married. Similarly, the agreement has to be founded on full and honest disclosure between the two parties, as if one party is later discovered to have withheld or provided false information, this may invalidate the agreement. Lastly, you cannot be pressured into making the agreement.
Although prenuptial agreements were once considered to be something that only the wealthy entered into prior to getting married, the practice is becoming far more widely used. Couples who enter into prenuptial agreements aren't intending to divorce, but rather are clarifying their financial rights and obligations before entering into the marriage. Talk to your fiancé about a prenuptial agreement: if your future spouse won't sign one, it's arguably better that you find this out before you get married. If you want to find out whether a prenuptial agreement could help your situation, talk to an attorney.