Premarital Agreements

The first difference between premarital agreements and ordinary contracts is their subject matter. Premarital agreements typically deal with one, or a combination, of three things: (1) property and support rights during marriage and on its dissolution by death of a spouse or divorce; (2) personal rights and obligations of the spouses during marriage; and (3) the education, care, and rearing of children who may later be born to the marrying couple. These subjects are of greater interest to the state than are those of ordinary contracts. The state wishes to protect the welfare of the couple and their children during and after marriage and to preserve the privacy of the family relationship. It passes laws to achieve these goals.

The second difference between premarital agreements and ordinary contracts is the relationship of the parties to each other. Prospective spouses are in a confidential relationship. They are often unevenly matched in bargaining power. The possibility, therefore, that one party may overreach the other is greater than in the case of ordinary contracts.

The third difference between premarital agreements and ordinary contracts is that premarital agreements are to be performed in the future, in the context of a marriage that has not yet begun, but which may continue for many years after the agreement is executed and before it is enforced. The possibility that unforeseen events may make enforcement of the agreement unwise, unfair, or otherwise undesirable, is greater than in the case of ordinary contracts.

These differences create a dilemma for the law. Prospective spouses have an interest in making their own bargains. As freely made bargains settling rights that might otherwise become a source of litigation, premarital agreements should be encouraged and enforced. To the extent, however, that these agreements vary or diminish the state-prescribed protections for the couple, their children, or their marital status; are likely to be the product of overreaching; or may become unfair by the time they are sought to be enforced, the law is wary of giving them validity. This built-in conflict makes premarital agreements less stable than ordinary contracts and explains why ordinary contract rules alone are insufficient to regulate them.

Like ordinary contracts, premarital agreements must be voluntary, made by competent parties, supported by consideration (the impending marriage is sufficient to satisfy this requirement), and consistent with public policy. However, they are subject to a more stringent review for procedural and substantive fairness than that accorded ordinary contracts. Courts review the fairness of ordinary contracts only at the time of execution but review premarital agreements for fairness at the time of enforcement as well.