Black-letter propositions
- 01
A premarital agreement ordinarily must be written and signed and becomes effective upon marriage.
- 02
Enforcement commonly requires voluntary execution and fair disclosure or valid waiver of financial information.
- 03
Timing, counsel, bargaining pressure, and understanding inform voluntariness.
- 04
Parties can contract about property and spousal support subject to statutory and public-policy limits, but cannot conclusively determine child support or custody.
- 05
Modification or revocation generally requires a signed writing after marriage.
Use this attack sequence under time
Frame the issue
Identify agreement type and governing act.
Resolve the next checkpoint
Check writing, signature, marriage, disclosure, and waiver.
Resolve the next checkpoint
Analyze voluntariness at execution.
Resolve the next checkpoint
Classify each term and public-policy limit.
Finish the conclusion
Assess unconscionability at the legally relevant time.
Common wrong turns
- An unfavorable bargain is not automatically involuntary.
- A child-related clause cannot displace the child's interests or court authority.
- Independent counsel is important but not always an absolute prerequisite.
Worked example
One party presents an agreement on the wedding morning after hiding major assets and threatening cancellation.
Late presentation, nondisclosure, and coercive circumstances support nonenforcement under voluntariness and disclosure standards.
Practice this topic
Premarital agreements
Cornell defines a prenuptial agreement as a contract entered into before marriage that sets the terms for separation, and it says provisions that tend to unreasonably encourage divorce or separation are unenforceable on grounds of public policy. Cornell's marital property entry adds that property the spouses agree to exclude from marital property by signing a prenuptial or postnuptial agreement is separate property.
NCBE's NextGen outline lists the enforceability of premarital, marital, separation and dissolution agreements as its own topic. It includes the authority to contract about child custody and support, and agreements that result from voluntary mediation and other collaborative processes.
Where contract doctrine overlaps
The outline notes that this topic may overlap with the Contracts outline sections on invalidating agreements for incapacity, duress, mistake, fraud, illegality or unconscionability. Apply those defenses to the agreement in the fact pattern, and ask what the agreement controls: property, support, or both.
The outline also lists the potential for premarital or separation and marital settlement agreements to control property division and alimony, so read the agreement before you apply the default rules. If the agreement is silent on an issue, the default rules of the state apply to it.
Enforcing a premarital agreement
Under the Uniform Premarital Agreement Act, an agreement must be in writing and signed, and it needs no consideration. The party resisting enforcement must show that signing was not voluntary, or that the agreement was unconscionable when signed and that party received no fair disclosure, waived none, and lacked adequate knowledge of the other's finances. A court may refuse to enforce a spousal-support waiver that would leave a spouse eligible for public assistance. States that have not adopted the Act apply their own tests, so name the state.
Cornell notes separately that a property division award cannot be modified unless exceptional circumstances exist, such as fraud or duress.
Frequently asked questions
What is the controlling rule for formation, disclosure, fairness, and modification?+
Premarital agreements require formal execution, voluntary assent, adequate financial knowledge or waiver, and terms within family-law public policy.
How should I analyze formation, disclosure, fairness, and modification on the bar exam?+
Identify agreement type and governing act. Check writing, signature, marriage, disclosure, and waiver. Analyze voluntariness at execution. Classify each term and public-policy limit. Assess unconscionability at the legally relevant time.
What is a prenuptial agreement?+
A contract entered into before marriage that sets the terms for separation, also called a premarital or antenuptial agreement, according to Cornell.
Can a prenup provision encourage divorce?+
Generally provisions that tend to unreasonably encourage divorce or separation are unenforceable on grounds of public policy, per Cornell.
Can parents contract about child custody and support in an agreement?+
NCBE's outline lists the authority to contract about child custody and support as part of the enforceability topic, so treat those terms carefully.
How does a prenup affect separate property?+
Property the spouses agree in a prenuptial or postnuptial agreement to exclude from marital property is separate property, according to Cornell.
Which contract defenses overlap with marital agreements?+
Incapacity, duress, mistake, fraud, illegality and unconscionability, according to the Contracts cross-references that NCBE's outline lists for marital agreements.