Prenuptial Agreements

A prenuptial agreement also called an antenuptial or premarital agreement is a contract, entered into before marriage, setting out the rights of each spouse in the event of divorce or death. The major benefit of a prenuptial agreement is that it avoids litigation later because you and your spouse have already agreed on how to divide your property if your marriage ends. Without a prenuptial agreement, Missouri divorce laws will determine how your property is divided, which can result in a long court battle.

Prenuptial agreements are common among people with children from a prior marriage who want to protect their children’s interests, people who have been through a messy divorce previously and want to make sure it doesn’t happen again, and people with significant assets.

However, even if you don’t belong to one of these groups, a prenuptial agreement might still be right for you if you want to decide for yourself what happens to your property. If you don’t create a prenuptial agreement, state law will determine how your property is divided, rather than you and your partner making these decisions.

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Issues that Prenuptial Agreements Cover

In general, prenuptial agreements can cover any issues relating to property, assets, and debts belonging to you or your future spouse.

For example, your premarital agreement may cover some of the following issues:

  • how premarital assets will or will not be combined or divided
  • how to pay premarital debts
  • how the marital home and marital property is divided
  • whether gifts, trusts and/or inheritances will be considered marital or separate property
  • whether either spouse will receive alimony (also called “maintenance”) in the event of divorce
  • how death benefits and/or life insurance will be divided, and
  • how matters such as medical care, disability insurance, and long-term medical care will be dealt with.

Can a Prenuptial Agreement Determine Child Custody and Child Support in Missouri?

Future child custody and child support arrangements can’t be determined in a prenuptial agreement in Missouri, as a matter of public policy. These decisions must be based on the best interests of the child, at the time of divorce.

Enforcing Prenuptial Agreements

Unlike many states, Missouri has not adopted the Uniform Prenuptial Agreement Act (UPAA). Rather, the enforceability of prenuptial agreements in Missouri is guided by statutes and case law. As a general matter, a prenuptial agreement must be in writing and signed by both you and your future spouse to be enforceable.

Under Missouri court cases, a prenuptial agreement must meet two main requirements to be enforceable. First, you and your future spouse must enter into the agreement “freely, fairly, willingly, understandingly, in good faith, and with full disclosure.” Second, the agreement must be “conscionable.”

There are a few things you can do to make your prenuptial agreement more likely to be enforced. First, you and your future spouse should use separate lawyers. This shows that both of you signed the agreement voluntarily, understood what you were signing, and know your rights at the time. Second, it’s best to sign the agreement well before the wedding date. This serves as evidence that neither party was pressured to sign by the fast-approaching “big day.” Third, both you and your future spouse should fully disclose the kind and value of all assets and debts you each have (for example, a bank account of $10,000 and real estate worth $50,000). Failing to fully disclose assets has often resulted in prenuptial agreements being found unenforceable by courts.

Because prenuptial agreements are complicated and impact your future rights as a spouse, you should always consult a Missouri family law attorney before signing one.

Tana Benner is an estate planning lawyer.