The leading, comprehensiveAlabama prenup

The controlling statute & cases

Statutes

Prenuptial agreements in Alabama are governed by Ala. Code § 30-4-9, § 43-8-72, and relevant state case law (i.e., court decisions) that help shape the laws around prenups. Ala. Code § 30-4-9 states that "[t]he husband and wife may contract with each other, but all contracts into which they enter are subject to the rules of law as to contracts by and between persons standing in confidential relations." This statute officially recognizes marital agreements as valid, while also emphasizing the fiduciary relationship between married persons.

Ala. Code § 43-8-72 states that spouses may waive rights to one another's estates in death by "written contract, agreement, or a waiver signed by the party waiving after fair disclosure." This statute reinforces the enforceability of marital agreements (such as prenups) as a valid mechanism for modifying spousal inheritance rights, so long as there is fair financial disclosure.

Case law

Controlling case law in Alabama includes Barnhill v. Barnhill, 386 So.2d 749 (Ala.Civ.App.1980), which provides for the "two-prong test for validity" that Alabama courts use on prenuptial agreement challenges. According to the Barnhill test, the party who wants the prenup enforced must show either:

1. that the entire transaction was fair, just, and equitable from the other party's point of view; or
2. that the prenup had been freely and voluntarily entered into by the other party, with legal advice and full understanding of their interest in the other party's estate and its financial value.

Uniform Premarital Agreement Act not adopted in Alabama

Alabama has not yet adopted the Uniform Premarital Agreement Act (UPAA). The UPAA is a uniform act that attempts to standardize prenuptial agreement laws across the United States. This Act lays out sample rules for the creation and enforcement of prenuptial agreements. More than half of the states have adopted some form of this Act into their family law code. However, Alabama is not one of them.

Requirements for an Alabama prenup

What are the requirements for a prenup in Alabama?

Prenuptial agreements in Alabama must be in writing and signed by both parties, entered into voluntarily, with full disclosure of assets, and must be either fair or signed with competent legal advice and knowledge of finances. Witnesses are also commonly utilized when signing a prenuptial agreement in Alabama.

Requirements:

• In writing
• Signed
• Witnessed
• Consideration
• Full disclosure of financials
• Entered into voluntarily
• Agreement is fair or parties had legal representation + proper understanding of finances

Does a prenup need to be notarized in Alabama?

While notarization is not strictly required by statute or case law, it is common practice for prenups in Alabama to be notarized. Many family law attorneys would agree that notarizing an Alabama prenuptial agreement is a crucial step in creating a sturdy agreement. Notarization can help with avoiding arguments that the agreement was not signed or that either party didn't know what they were signing.

Do both parties need a lawyer for a prenup in Alabama?

Alabama has a unique test in evaluating prenuptial agreements that most states do not have. This test is known as the "Barnhill" test and stems from a 1980s Appellate case. The test asks whether the agreement was fair to the party that is challenging the agreement or whether that same party entered into it with legal advice and a full understanding of the other party's assets.

This does not mean a lawyer is strictly required for both parties, but it does mean it will add a significant layer of protection should the agreement ever be challenged. It's often best practice in Alabama for both parties to have legal representation.

What makes a prenup invalid in Alabama?

A prenuptial agreement in Alabama may be deemed invalid if it was not signed, there is inadequate financial disclosure, it's unfair, or if one party did not enter into the agreement voluntarily, or without legal advice, plus without a full understanding of their rights and the agreement's terms. Certain prenup clauses in Alabama may also be considered invalid if they are against public policy.

How long before the wedding should I sign a prenup in Alabama?

There is no hard and fast rule on when you should sign a prenuptial agreement in Alabama. Courts there have upheld agreements signed a day before the wedding when other factors were in place to support validity. For example, in Brown v. Brown, an Alabama court upheld a prenuptial agreement signed one day before the wedding because the wife was a real estate agent who was familiar with lengthy legal documents, she knew her husband's assets, and she even attempted to seek legal advice. (Brown v. Brown, 26 So.3d 1210 (2007)). In another Alabama case, the court enforced a prenup also signed one day before the wedding because both of the spouses had their own attorneys. (Ayers v. Ayers, 376 So.3d 522 (2022)).

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What can & can't be in an Alabama prenup

Does cheating void a prenup in Alabama?

No. In fact, an Alabama Appellate Court reviewed this exact question in 2022. In Ayers v. Ayers, an Alabama court explicitly rejected the argument that one spouse's affair rendered the prenuptial agreement unenforceable. In other words, prenups may still be enforced even if there is strong evidence of adultery. (Ayers v. Ayers, 376 So.3d 522 (2022)).

Are infidelity clauses enforceable in Alabama?

They may be enforceable if drafted carefully. If they are too aggressive or too complicated, Alabama trial courts may refuse to enforce them entirely. In Thacker v. Thacker, an Alabama court addressed a prenup with an infidelity clause entitling the wife to $500,000 if the husband cheated. While there were other issues with the infidelity clause (requiring proof of adultery), it did treat the clause as potentially enforceable. (Thacker v. Thacker, 298 So.3d 502 (2020)).

Can a prenup include child custody in Alabama?

No, prenuptial agreements in Alabama may not include clauses regarding child custody. This is because child custody is a matter to be decided at the time of the divorce. It's impossible to see the future, and determining child custody (potentially) years ahead of the actual divorce may render a decision that is no longer applicable. In addition, child custody should be in the best interests of the child, not a contract between the parents.

Can a prenup protect a business in Alabama?

Yes, of course. Prenuptial agreements in Alabama can outline that business interests are separate and not divisible in a divorce. Keep in mind that drafting prenups to include businesses can be tricky because of the various ways businesses are held. It may be through equity, stock options, assets, debt, etc. Ensuring your specific business interests are protected specifically is crucial to keeping your business safe in a divorce.

Can a prenup protect inheritance in Alabama?

Yes! Prenuptial agreements are an excellent way to protect inheritances in Alabama. With a prenup, you can outline that each spouse's inheritance and gifts from third parties are separate property, and therefore, not divisible in a divorce. Anything delineated as separate property in the prenuptial agreement should be considered that party's property in the divorce.

Marital property in Alabama

Is Alabama a community property state?

No, Alabama is not one of the nine community property states. Alabama is an equitable distribution state, which means assets are not automatically divided 50/50 upon a divorce, and are instead divided equitably by a judge. (Ala. Code § 30-2-51). This means assets may not necessarily be divided 50/50, and several factors will come into play when determining how the marital estate is divided. (Hill v. Beverly Collier Hill, 208 So.3d 1144 (2015)).

How is property divided in a divorce in Alabama without a prenup?

In Alabama, property is divided under equitable distribution principles, meaning that a judge considers different factors when determining how much (and what) property to award to each spouse. (Ala. Code § 30-2-51). This doesn't necessarily mean 50-50 and can be any distribution in which a court deems fair.

When dividing marital property, Alabama trial courts must consider several factors including the length of the marriage, the age/health of the spouses, the future earning capacity of each person, the source, type, and value of the property in each estate, the standard of living to which the spouses have become accustomed to during the marriage, and the fault of the parties contributing to the breakup of the marriage (Hill v. Beverly Collier Hill, 208 So.3d 1144 (2015)).

Alimony in Alabama

Can a prenup waive alimony in Alabama?

Yes, a prenuptial agreement in Alabama may waive alimony. Waiving alimony means neither party may be able to seek financial support in the divorce. (Ala. Code § 30-2-57). Alimony is typically granted only if one spouse needs financial support (and they don't have enough of their own money), and the other spouse can afford to help without hurting themselves financially. (Ala. Code § 30-2-57). An alimony waiver in a prenup effectively prevents one or both parties from getting spousal support, as long as the waiver is enforceable.

How is alimony determined in Alabama without a prenup?

In Alabama, according to Ala. Code § 30-2-57, alimony may be awarded when (1) one spouse lacks sufficient property, (2) the other spouse has the means to support them, and (3) awarding alimony would be fair and reasonable under the circumstances. When determining if one spouse has "enough," the court may look at factors like the length of the marriage, the spouses' ages and health, each person's earning capacity, the standard of living during the marriage, any marital misconduct, and whether one spouse sacrificed career for family.

How much does a prenup cost in Alabama?

How much does a prenup cost in Alabama?

The cost of a prenup in Alabama will vary depending on the cost of the attorney you hire, the method of getting a prenup (online prenup vs. attorney prenup), your personal goals and finances, and the amount of negotiation. Generally, online prenups are flat rates, so you don't have to worry about fluctuating costs. However, when getting a prenup with an attorney, the price can fluctuate based on a number of different factors because attorneys usually charge by the hour.

What is the cheapest way to get a prenup in Alabama?

Typically, the cheapest way to get a prenup in Alabama is to use an online service like HelloPrenup. This is because you technically don't need a lawyer (even though it is highly recommended to do so in Alabama). Getting an online prenup with an online prenup platform allows you and your partner to generate an agreement on your own time, without the hassle of depending on an attorney to draft the entire thing from scratch. This reduces the amount of money you need to spend on attorney's fees.

How much does a prenup lawyer cost in Alabama?

Alabama prenuptial agreement attorney Evelyn Ufomadu explained that "most prenups in Alabama generally cost between $2,500 and $5,000 for full prenup services, with pricing varying based on the complexity of the couple's finances and the amount of work involved. Drafting engagements generally require a $1,500 retainer, while review-only matters involving agreements prepared elsewhere typically take approximately 3–4 hours billed at the attorney's standard hourly rate." If you hire a prenup attorney in Alabama through HelloPrenup, it will cost you $699 flat, per attorney.

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How to get a prenup in Alabama

How do I get a prenup in Alabama?

There are two ways you can get a prenup in Alabama. The first option is to hire a lawyer and have them walk you through the whole process. This is the most costly option and can also take some time. The second option is to get a prenup online with a reputable online service created by attorneys (like HelloPrenup). With HelloPrenup, you can also hire Alabama attorneys through the platform if you want. With online platforms, you don't necessarily need to hire a lawyer in Alabama, but it is extremely beneficial to do so, as your prenup could be thrown out if it is deemed unfair, and you also didn't have legal representation.

Can I write my own prenup in Alabama?

You technically can, and it may hold up in court, but it is risky. If one spouse challenges the agreement and the agreement is deemed unfair, then a court will look to whether either party had legal representation. If there was no representation, then the prenup will be thrown out. (See the "Barnhill" test from Barnhill v. Barnhill, 386 So.2d 749 (Ala.Civ.App.1980)).

How long does it take to get a prenup in Alabama?

It depends on what method you use to get a prenup, your specific situation and needs, and the time it takes to negotiate terms. For example, if you go the traditional attorney route, it can take a few weeks to get the prenup done, depending on the attorney's availability. Another factor is each spouse's needs for the prenup and financial situation. Someone with extremely complex finances (trusts, businesses, multiple cross-state properties), will take more time for the attorney to review documents and understand assets than someone with simple finances.

The average time to get a prenup in Alabama with HelloPrenup is about two calendar days. This is because the platform provides couples with a guided questionnaire, with simple instructions, that helps the couple work through the prenup on their own. In addition, parties can fill out their own financial disclosure without attorney review. Even couples that choose to hire a lawyer in Alabama through HelloPrenup, the process takes only a little bit longer, an average of one week.

Do I need a lawyer to get a prenup in Alabama?

It is highly recommended that couples in Alabama hire a lawyer for their prenuptial agreement, though it is not a strict statutory requirement. Courts may analyze your prenuptial agreement (if one party challenges it), and if the court deems it to be unfair, then the court will turn to whether or not the parties had legal representation. If there was no legal representation and the agreement is unfair, then the court will throw it out. However, if it's unfair but the parties had legal representation, they're less likely to throw out the agreement.

Caselaw & enforceability

Are prenups enforceable in Alabama?

Yes, prenuptial agreements are regularly enforced in Alabama. There are certain requirements that must be met for an Alabama prenup to be enforced. This includes the agreement being in writing and signed, proper financial disclosure by each spouse, fairness of the agreement or legal representation, and both parties entering into the agreement voluntarily. Witnesses and notarization are not required, but they are strongly recommended by legal practitioners.

How hard is it to break a prenup in Alabama?

You may legally revoke a prenuptial agreement, but that requires mutual consent by both spouses. Revoking a prenuptial agreement generally requires both parties to execute another agreement stating their intent to revoke the document, and the same requirements that were necessary for the prenup generally apply to the revocation document.

It is generally not possible in Alabama to "break" a prenup by simply not complying with certain terms of the agreement. Alabama case law reiterates that. In Garrett v. Garrett, the wife argued that the prenuptial agreement should be thrown out because two of its clauses were breached, but the court still upheld the agreement despite not following a few of the clauses. (Garrett v. Garrett, 637 So.2d 1376 (1994)). In other words, the prenup was not "broken" here.

Can a judge throw out a prenup in Alabama?

Yes, a judge can throw out a prenup in Alabama, but only if certain factors are present. A judge may throw out a prenup if it was not properly signed by both parties, if there was not proper financial disclosure from each party, if one of the parties did not voluntarily enter into the agreement, if the agreement was unfair and there was no legal representation, and/or if the agreement (or part of it) is deemed unconscionable.

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Duration & after-marriage

How long does a prenup last in Alabama?

Prenuptial agreements in Alabama last forever, unless the agreement itself says otherwise or it is deemed unenforceable by a court. There is no default state law that says a prenuptial agreement expires at a certain time. However, couples may include a "sunset clause" which effectively voids the agreement at an agreed-upon date (usually a certain wedding anniversary).

Some couples may decide to put an expiration date on their prenuptial agreement as a bargaining chip for the prenup. For example, a couple may say that they want to keep all property separate and waive alimony if the marriage only lasts 10 years or less, but if the marriage lasts 11 years or more, the prenup expires, and default state law applies. This can be a good middle ground for couples who are finding it difficult to come to terms.

Can you get a prenup after marriage in Alabama?

No, a prenuptial agreement cannot be signed after the wedding day in Alabama. Prenups must be signed prior to the wedding. If you want to get an agreement in place with your spouse after you're already married, you can look into a postnuptial agreement, which has the same intent as a prenup, but is signed between spouses after the wedding. Postnuptial agreements are subject to stricter scrutiny in Alabama due to the confidential relationship between spouses (as opposed to fiancés), so courts may be quicker to toss out a postnup as compared to a prenup. But that is not to say that postnups cannot be valid and enforceable with the proper requirements and legal help.

Can you change a prenup in Alabama?

Yes, changing a prenuptial agreement in Alabama is called a prenuptial agreement amendment. Amending a prenup in Alabama is possible, but it requires the consent of both parties (a prenup cannot be unilaterally changed). An amendment document will need to be drafted, and the same laws that apply to postnuptial agreements will apply to the amendment. This means proper signatures, financial disclosure, fairness, voluntariness.

Cross-border & recognition

Is a prenup signed in another state valid in Alabama?

Yes, as long as the application of that state's law is not contrary to Alabama state policy. (Rhyne-Morris v. Morris, 671 So.2d 748 (1995)). In this case, the couple married in Hawaii in 1986, where they also signed a prenup that stated Hawaii law should apply. After several years of marriage, they filed for divorce. The husband argued that the prenup controlled, while the wife argued that the prenup should be thrown out for several reasons, including that she didn't have a lawyer. Ultimately, the appellate court held that prenups do not require independent legal counsel for a valid prenup and that the trial court made an error by failing to consider the prenup's Hawaii choice-of-law provision. The takeaway from this case is that it confirms that Alabama will generally honor another state's law in evaluating a prenup unless doing so would conflict with its public policy.

What happens to my Alabama prenup if I move to another state?

In many cases, your Alabama prenup will be upheld in other states. When you get a prenup in Alabama, it usually means you created it in accordance with Alabama law and included an "Alabama choice of law" clause as your governing law of the prenup. The question becomes: If your prenup's validity is challenged in the new state, will the new state apply Alabama's laws of construction for prenups to evaluate whether or not the prenup should be upheld? The answer is usually yes, so as long as you created the prenup validly in Alabama, it should hold up in another state.