How to contract for marriage

Its not like buying a car

Premarital Agreement = Contract

Offer Acceptance Consideration (usually the marriage and mutual promises) Performance Public Policy Watch out for: Fraud, Duress, Impossibility, Unconscionability

which means.
Illegal
Wife will bake Husband magic brownies every Thursday

Unconscionable
Upon divorce, all property regardless of when purchased or how it was maintained shall be come the sole and separate property of Wife. Further Husband shall vacate the marital home within 1 hour of Wifes demand that he do so. Husband shall receive $1 as his share of the marital estate and shall receive no spousal support.

Which also means.

Where the contract is silent, the law governs. Divorce Estate/Probate/Fiduciary Tax Property Contract Premarital Agreements can be the basis of a breach of contract action.

But it also means that the law will not protect you from being stupid.
As with any contract, reformation or rescission is only available in certain circumstances

What celebs have allegedly contacted for:

Brooke Mueller and Charlie Sheen Prenuptial Agreement provisions: Brooke to receive $500,000 to be paid within 180 days from the date of solemnization of the parties marriage... Brooke is not entitled to any portion of Sheens assets or any spousal support Brooke is provided an annual allowance as well as an appreciating share in the couple's Beverly Hills home. Each year Brooke receives an "anniversary payment" of $300,000, "payable within 30 days of the anniversary of the marriage" for the first 10 years of their marriage. If Charlie defaults on a payment, Brooke must send him a written notice of default; if he fails to pay ten days after that, the anniversary payment will accrue interest at an annual rate of prime plus two percent. If they divorce mid-year, Brooke receives a pro-rated anniversary payment, calculated to the month... In the event of divorce, Brooke receives a $100,000 relocation fee and whichever of Charlie's cars is then driven by Brooke. She then has 90 days after receipt of payment to vacate the premises... Catherine Zeta-Jones and Michael Douglas Prenuptial Agreement provisions: Zeta-Jones will get $1.5 million for every year of marriage Zeta-Jones receives $5 million straying fee if Douglas cheats on her Douglas has a confidentiality clause barring Zeta-Jones her from ever revealing personal details of their marriage

Who would like you to get one?

Parents/Grandparents/Siblings Paris, I understand he loves you but Boards of Directors/Partners We are happy for you Mr. Zuckerberg, but. Children from prior relationships my college tuition is not going to go to Wife 4

Where are you?

Why does it matter?

Mobility
Law in location of execution Law in location of divorce

Comprehension of terms/language fluency

Bride from a book/Facebook buddies Effective counsel/disclosure

England

Why didnt Paul McCarthy have a premarital agreement?

The Law
The Maintenance Agreement Act of 1957 - marital agreements are legal but may be altered by courts within divorce proceedings. Prenuptial agreements were considered "of very little significance. Division of property upon divorce is according to a statutory formula cannot contract around. Courts can and did ignore any pre-nuptial agreement if they thought that it was unreasonable to either of the parties involved, particularly regarding to the maintenance and housing of children. For example, unlike in Virginia, courts can order the transfer of property from one party to the other regardless of title. Couples who moved to the UK after signing a valid agreement in another country had no assurance that their agreement would be enforced by a U.K. court. [Think Madonna, Gwyneth Paltrow, Johnny Depp]

Premarital Agreements not valid unless you are a German heiress

In 2010, in Radmacher v. Granatino, the High Court found that a couples prenuptial agreement should be given weight, reasoning that the fear that allowing prenuptial agreements would increase the divorce rate could not outweigh the benefits of predictability and freedom to contract. Also the court found it illogical that post nuptial agreements were enforced yet prenuptial agreements were not.
http://www.telegraph.co.uk/news/uknews/law-and-order/8075247/German-heiress-wins-legal-battle-over-pre-nuptialagreement.html

Therefore expanded recognition of right to contract but until Parliament acts to change the law, a pre-nuptial agreement cannot be binding on the court or prevent an application for ancillary relief (spousal support)

Back across the pond.

Arizona Arkansas California Connecticut Delaware District of Columbia Hawaii Idaho Illinois Indiana Iowa Kansas Maine Montana Nebraska Nevada New Jersey New Mexico North Carolina North Dakota Oregon Rhode Island South Dakota Texas Utah Virginia

1991, c. 4 1987, Act 715 1985, c. 1315 1995, P.A. 95-170 70 Del. Laws, c. 462 1995, D.C.Act 11-159 1987, Act 321 1995, c. 229 1989, P.A. 86-966 P.L.1-1997 1991, H.F. 357 1988, c. 204 1987, c. 302 1987, c. 189 1994, LB202 1989, c. 472 1988, c. 99 1995, c. 61 1987, c. 473 1985, c. 190 L.1987, c. 715 1987, c. 449 1989, c. 216 1997, c. 7 1994, c. 105 1985, c. 434

3-25-1991 8-20-1987 1-1-1986 10-1-1995 9-1-1996 2-9-1996

A.R.S. 25-201 to 25-205. A.C.A. 9-11-401 to 9-11-413. West's Ann.Cal.Fam.Code 1600 to 1617. C.G.S.A. 46b-36a to 46b-36j. 13 Del. C. 321 to 328. D.C. Official Code, 2001 Ed. 46-501 to 46-510. HRS 572D-1 to 572D-11. I.C. 32-921 to 32-929. S.H.A. 750 ILCS 10/1 to 10/11. West's A.I.C. 31-11-3-1 to 31-11-3-10. I.C.A. 596.1 to 596.12. K.S.A. 23-801 to 23-811. 19-A M.R.S.A. 601 to 611. MCA 40-2-601 to 40-2-610. R.R.S. 1943, 42-1001 to 42-1011. N.R.S. 123A.010 to 123A.100. N.J.S.A. 37:2-31 to 37:2-41. NMSA 1978, 40-3A-1 to 40-3A-10. G.S. 52B-1 to 52B-11. NDCC 14-03.1-01 to 14-03.1-09. ORS 108.700 to 108.740. Gen. Laws 1956, 15-17-1 to 15-17-11. SDCL 25-2-16 to 25-2-25. V.T.C.A. Family Code, 4.001 to 4.010. U.C.A.1953, 30-8-1 to 30-8-9. Code 1950, 20-147 to 20-155.

1-1-1990 7-1-1997 1-1-1992 5-9-1988 6-15-1987 3-25-1994* 6-24-1989 90th day after 8-5-1988 7-1-1995 7-1-1987 1-1-1988 7-1-1987 4-17-1997 5-2-1994 7-1-1986
] [

Closer to home:

Virginia
PREMARITAL AGREEMENTS ( 20-147-154): 20-149 - A premarital agreement shall be in writing and signed by both parties. Such agreement shall be enforceable without consideration and shall become effective upon marriage. 20-150. Content of agreement. Parties to a premarital agreement may contract with respect to: 1. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located; 2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property; 3. The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event; 4. Spousal support; 5. The making of a will, trust, or other arrangement to carry out the provisions of the agreement; 6. The ownership rights in and disposition of the death benefit from a life insurance policy; 7. The choice of law governing the construction of the agreement; and 8. Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

 20-151. Enforcement; void marriage. A. A premarital agreement is not enforceable if the person against whom enforcement is sought proves that: 1. That person did not execute the agreement voluntarily; or 2. The agreement was unconscionable when it was executed and, before execution of the agreement, that person (i) was not provided a fair and reasonable disclosure of the property or financial obligations of the other party; and (ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided. B. Any issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law. Recitations in the agreement shall create a prima facie presumption that they are factually correct. C. If a marriage is determined to be void, an agreement that would otherwise have been a premarital agreement shall be enforceable only to the extent necessary to avoid an inequitable result. 20-152. Limitation of actions. Any statute of limitations applicable to an action asserting a claim for relief under a premarital agreement is tolled during the marriage of the parties to the agreement. However, equitable defenses limiting the time for enforcement, including laches and estoppel, are available to either party. 20-153. Amendment or revocation of agreement. After marriage, a premarital agreement may be amended or revoked only by a written agreement signed by the parties. The amended agreement or the revocation is enforceable without consideration.

District of Columbia:
Permits Same Sex Marriages, domestic partnerships, filing of a Suit for Legal Separation. Also Enforcement (30-146): (a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that: (1) That party did not execute the agreement voluntarily; or (2) The agreement was unconscionable when it was executed and, before execution of the agreement, that party: (A) Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party; (B) Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and (C) Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party. (b) If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes 1 party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility. (c) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law. 30-146

Maryland:
Permits Same Sex Marriages (potentially under Referendum) but does not have a specific premarital agreement statutes. Therefore such agreements fall within contract.

(Aside California Bonds case; disclosure)

REMEMBER: WITH A 50% DIVORCE RATE, THIS IS THE CONTRACT THAT YOU WILL MOST LIKELY SEE AGAIN. The four corners no parole evidence carefully draft your Recitals and naming your parties. It is sometimes better and preferable to let the law govern. Be judicious and practical in your drafting protect only that which needs to be protected. Think through each process that you include follow it and fill in any holes. Ultimately, you want this contract to gather dust or to eliminate any future litigation, regardless of whether the marriage ends in death or divorce.

Cannot contract for custody, visitation and child support

Circumstances State interest/law

Who are the happy couple?

Factors to consider:
Age
Young love Middle life marriage Second, third, fourth. May/December, June/August Child support Expenses while cohabiting College payments Adoption

Prior children

Future children
Biology/Careers IVF/Assisted conception Billy Jean

 Assets Title/Deed Combining current assets; how are we paying for stuff? Purchasing future assets; but I dont want an 80 inch TV! Inheritances Debts Current payment/contribution Future joint/separate Taxes Health issues
Long Term Care/Disability Insurance Medicare AIDS

Employment arrangements
Whos working from whom Can Donald fire Melania?

Death
Elective Share Life estates Service as Executor Medical Powers of attorney

Divorce
Method/Timeline
Trigger Default provisions (avoid the ostrich!)

Support/Maintenance of assets Fault Initialization/formalization

Civil action Religious action Payment

Annulment
Marriage never occurred so certain rights do not attach. Do not contract to grant rights that would not exist. Spousal support, taxes, rights to inherit

Cinderella and Prince Charming

Missed each other at the ball, but found each other after a long prosperous and happy life. They are economic equals. Each married previously; each accumulated wealth. They want to marry but do not want to tangle their estates except as necessary. Dont want to interfere with estate and retirement planning but they do want to build their own dream castle.

Aladdin and Jasmine

Young couple just starting out, expecting to live a long and happily married life together. They both work, a few assets that they have already bought together and some debts (school loans). Jasmine has trust fund income and assets which her family wants to protect and she potentially has health issues. Dont want to interfere with ability to grow the marital estate and a build a life together.

Eugene and Bertha

Eugene has never been married before and Berthas been around the block and has 3 children. She wants Eugene to pay for everything, leave her lots of stuff when he dies and not expect her to contribute anything to the marriage. Eugene wants Bertha.

Question: my beloved wont sign Answer: Dont marry the nuclear option