We have all heard of a prenup, the document people use to prevent their spouses from taking their assets in the event of a divorce.  But what is the document exactly?  A prenup is a contract executed prior to tying the knot that dictates who gets what assets and what liabilities, and whether or not there will be maintenance (alimony) paid and if so how much, if the parties are divorced.  The truth is prenuptial agreements are becoming more and more common, especially as more women enter marriage with significant assets and/or earning potential, they are not just for rich people anymore. 

 

Today prenuptial agreements are appropriate for a variety of marriages. One of the primary reasons prenuptial agreements are drafted is because one or both spouses desires to include children from a previous marriage in their estate plan.  Because under Missouri law widows are automatically entitled to a certain portion of their deceased husband’s estate, a prenup can be used to ensure certain assets are transferred to the children.  Prenups are used more for 2nd and later marriages when compared with first marriages.  This is because after experiencing the contentiousness of the first divorce and perhaps losing much more than they felt was justified, they want to prevent a reenactment of their first divorce. People who enter into subsequent marriages also tend to be a little more realistic about the possibility of divorce. 

 

Prenuptial agreements are also very common where the spouses are beginning careers with high earning potential, even if they lack assets or have substantial debt such as student loans.  Because prenups can dictate whether maintenance is to be paid, they are popular with aspiring professionals.  Finally, when family businesses are owned by one spouse, or one spouse stands to inherit a family business or a large fortune, prenups are appropriate.  This is includes situations where one spouse is a partner in a partnership or limited liability company. 

 

Are prenuptial agreements enforceable in Missouri?

 

Yes, in general prenups are enforceable in Missouri as long as they meet certain requirements.  The Missouri statute pertaining to prenuptial agreements is Mo. Rev. Stat. § 451.220, and reads, “All marriage contracts whereby any estate, real or personal, in this state, is intended to be secured or conveyed to any person or persons, or whereby such estate may be affected in law or equity, shall be in writing, and acknowledged by each of the contracting parties, or proved by one or more subscribing witnesses.” 

 

Beyond the statutory requirements, judges will generally look to three factors when determining if a prenup is valid and enforceable:

 

1. Timing:  The first factor judges will consider is when the prenuptial agreement was executed in relation to the date of the marriage.  The issue here is that the court wants both parties to have a chance to review the contract thoroughly and reflect on what signing it means to their rights.  What the court does not want to see is a prenup sprung on one party by the other two days before the wedding date, when plans for the wedding have been in the works for months.  If there was inadequate time for a party to properly consider the agreement, the court may find the contract was signed under duress and therefore unenforceable. 

 

  2.  Attorney representation: Judges will look more favorable upon a prenuptial agreement if both parties to the contract were represented by separate attorneys when the contract was executed. If the party desiring the contract has representation and the party does not, judges will not look fondly at this with regard to the enforceability of the contract. 

 

3.   Full disclosure of assets and liabilities:  A prenuptial agreement can be declared void if both parties do not fully disclose to the other all of their assets and liabilities.  Because the contract is meant to protect the assets and liabilities of the potential spouses, it is essential each party is able to accurately identify what those assets and liabilities are.

 

How long are prenuptial agreements valid?

 

The terms of a prenuptial agreement will dictate if and when the contract expires, as long as the agreement is properly drafter according to Missouri requirements. If the agreement is properly prepared and does not dictate an end date, the prenup will remain valid until the end of the marriage or the death of one of the spouses. 

 

A common component of prenuptial agreements, however, is what is known as a sunset clause.  A sunset clause dictates the contract will expire after a certain number of years. These clauses make sense because they protect the party with the most assets in the event of a short marriage, but it allows for a more equal distribution of assets for long term marriages. 

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If you are questioning whether you need a prenuptial agreement prior to divorce, you probably do need it. Call our office at (816) 287-1530 to schedule a consultation to discuss further your particular situation. 

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