Legal Faqs of Marriage
Reprinted with permission from Nolo Press
1. What is the difference between a living together agreement and a
Before a couple marries, the parties may make an agreement concerning
certain aspects of their relationship after they marry. This agreement might
cover the their responsibilities and property rights during marriage-for
example, how the mortgage will be paid and who will stay home to take care
of the kids. But more likely, it will determine how property will be
divided, and whether alimony will be paid, in the event the couple later
divorces. These agreements are also called ante nuptial or prenuptial
2. Are premarital agreements legal?
Courts usually uphold premarital agreements unless one person shows that the
agreement is likely to promote divorce (for example, by providing for a
large alimony amount in the event of divorce), was written and signed with
the intention of divorcing or was created unfairly (for example, one spouse
giving up all of the rights in his spouse's future earnings without the
advice of an attorney).
But courts won't uphold agreements of a non-monetary nature. For example,
you can't sue your spouse for failure to take out the garbage, even if your
premarital agreement says that he or she must do so every Tuesday night.
3. Should my fiancÚ and I make a premarital agreement?
Whether you should make a premarital agreement depends on your circumstances
and on the two of you as individuals. Some couples choose to make a
premarital agreement as a way of clarifying their intentions and
expectations, as well as their rights should they later split up.
On the other hand, some couples make premarital agreements to circumvent
what a court might decide in the event of a divorce. Often this happens when
one partner has property that he or she wishes to keep if the marriage
ends-for example, a considerable income or a family business. Perhaps most
frequently, premarital agreements are made by individuals who have children
or grandchildren from prior marriages. In this case, a partner may use a
premarital agreement to ensure that the bulk of his or her property passes
to the children or grandchildren, rather than the current spouse.
4. Are there rules about what can or cannot be included in a premarital
A law called the Uniform Pre-Marital Agreement Act provides legal guidelines
for people who wish to make agreements prior to marriage regarding
ownership, management and control of property; property disposition on
separation, divorce and death; alimony; wills; and life insurance
States that haven't adopted the Act (or which have made some changes to it)
have other laws, which often differ from the Act in only minor ways. One
important difference is that a few states, including California, do not
allow premarital agreements to modify or eliminate the right of a spouse to
receive court-ordered alimony at divorce. Other states have their own quirky
laws-Maine, for example, voids all premarital agreements one and one half
years after the parties to the contract become parents, unless the agreement
In every state, whether covered by the Act or not, couples are prohibited
from making binding provisions about child support payments.
States That Have Adopted the Uniform Pre-Marital Agreement Act:
North Dakota Oregon
5. Can my fiancÚ and I make our premarital agreement without a lawyer?
You can look up the laws for your state and write your agreement yourselves.
Unfortunately, however, there's no good self-help resource for writing
premarital agreements, and if you make a mistake, a court may find your
agreement unenforceable. If you'd like to draft a contract on your own, we
recommend that you have an attorney look it over to make sure you've
followed the law to the letter.
6. I've been living with someone for several years and we've decided to get
married. Will our existing property agreement be enforceable even after we
Probably not. To be enforceable, contracts made before marriage must be made
in contemplation of marriage. This means that unless your living together
contract is made shortly before your marriage, when you both plan to be
married, a court will disregard it.
If you want to convert your living together contract into a premarital
agreement, follow these steps:
Use your upcoming marriage as an opportunity to take another look at your
agreement, and make any agreed-upon updates and changes.
Rewrite your agreement. Call it a premarital or prenuptial agreement, and
state that it is made in contemplation of marriage and does not take effect
until you marry.
Because there is no good self-help resource in this area, and because even a
small mistake can result in your agreement later being held unenforceable,
have your agreement checked-out by a lawyer.
Sign the document in front of a notary