Delaware Prenuptial Agreements
Whether you live in Delaware for the rich culture and history or you’re just there for the favorable corporate laws—getting a Delaware prenup is as easy as crab cakes and peach cobbler. Let’s dive into the do’s and don’ts of getting a prenup in Delaware.
Prenup basics in Delaware
In Delaware, prenuptial agreements (often called premarital agreements or prenups, but they mean the same thing) are a smart way for couples to align their financial and life goals before tying the knot. Not only do prenups offer protection for assets and establish clear expectations for the marriage and potential divorce, but they can also foster deeper communication and understanding between partners. Crafting a prenup ultimately leads to a more transparent and informed decisions before entering into a lifelong commitment.
The creation and enforcement of these agreements are governed by Delaware’s version of the Uniform Premarital Agreement Act.
How to create a valid and enforceable prenup in Delaware
Let’s discuss all the to-do’s and the definitely-don’t-dos for getting a valid and enforceable prenup in Delaware.
Prenup requirements:
- Must be in writing
- Both partners sign the agreement
- The agreement must be entered into voluntarily (no force, duress, coercion, undue influence, etc.)
- Both partners provide fair and reasonable financial disclosure to eachother
- The prenup is not unconscionable
- The prenup does not include any clauses that are illegal or against public policy
- The prenup does not include any clauses regarding child support
What to avoid:
- Must not include clauses related to child support or child custody
- Must not be entered into under some type of pressure or force (i.e., involuntarily signing the agreement)
- No omitting or hiding certain assets, income, or debt on financial disclosures
- No unconscionable terms may be included
- No unlawful terms may be included
- No terms against public policy may be included
What can you put in your Delaware prenup?
Alright, so what can you actually put into your prenup? Delaware actually has a statute that tells you exactly what can (and cannot) go into your prenup. The statute says the following topics may be included in your Delaware prenup:
- Property rights
- Rights to buy, sell, transfer, and otherwise control property
- Property division in divorce or separation
- Modifying or waiving spousal support
- The making of a will or other estate planning documents
- Life insurance arrangements
- Choice of law clauses, and
- Any other matter, including personal rights and obligations that are not in violation of public policy or considered a crime.
Prohibited: The right of a child to support may not be adversely affected by a premarital agreement.
Financial disclosure in Delaware
Financial disclosure is sharing financial information with your future spouse. Every state, including Delaware, requires some level of financial disclosure for the prenup to be valid. This means disclosing all of your assets, debts, and potential future inheritances (no skipping anything!).
In Delaware, the financial disclosure in a prenup must be “fair and reasonable.”. What is considered “fair and reasonable” is determined on a case-by-case basis by a court, if it is ever challenged. But a good rule of thumb is to always disclose EVERYTHING to the highest degree of accuracy.
When to choose Delaware as your state
When choosing a state for your prenup, the general rule is to select the state where you’ll primarily reside during your marriage. However, if your situation is more complex – you’re unsure of your future residence, live in multiple states, or plan to move – the answer isn’t so clear-cut.
The laws regarding the enforcement of out-of-state prenups vary across states. Some states don’t have any case law or statutes regarding the issue. While many will uphold a prenup from another state, some won’t. This can create a legal “gray area” where the outcome is uncertain.
If you have questions about choosing the right state for your prenup, consulting with a lawyer familiar with the laws of the relevant states is crucial. They can analyze your specific circumstances and help you make an informed decision to best protect your interests.
Do you need a lawyer for your prenup to be valid in Delaware?
The short and sweet answer is technically no, you do not need a lawyer for a prenup to be valid in Delaware. However, if your prenup is ever contested in a Delaware court, having a lawyer would potentially help show that the person with the lawyer entered into the agreement knowingly and voluntarily. Even if just one person has a lawyer and the other doesn’t, it’s not necessarily enough to show that the person without the lawyer wasn’t entering the agreement voluntarily. In other words, it’s possible to enforce a prenup when only one person or neither person has a lawyer.
For example, an unreported case from a Delaware family court upheld an agreement even though the parties didn’t have lawyers. In this case, the court considered whether not having an attorney meant the wife was pressured into signing it. The husband testified that the wife repeatedly said she didn’t care about his assets and didn’t want anything from him. The wife didn’t deny saying those things. The court believed the husband’s testimony and decided that the wife chose not to get legal advice because she wasn’t interested in the husband’s assets. Since the husband also didn’t have a lawyer and the agreement was available for review before signing, the court concluded that the wife voluntarily signed the agreement even though she didn’t have an attorney. L.W. v. J.W., No. CN13-01397, 2014 WL 4203848, at *8 (Del. Fam. Ct. 2014).
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Default laws on property division in Delaware
In Delaware, without a prenup, a court has discretion to divide your property equitably, as it deems fair and just. Delaware is known as one of the equitable distribution states, which means property is not automatically split 50/50, such as is in other states like California.
Instead, in a Delaware divorce, the court aims for a fair distribution of marital property, which includes all property acquired during the marriage (except for certain gifts or inheritances) and jointly-titled real estate acquired before the marriage (unless agreed otherwise, say, in a prenup). When dividing up the property, the court considers various factors, such as the length of the marriage, each spouse’s age, health, income, and contributions to the marriage, to determine what is equitable.
Default laws on alimony in Delaware
In Delaware, alimony (financial support paid by one spouse to the other during or after divorce) cannot be put into your prenup. Instead, a judge has discretion in deciding whether or not alimony (and how much) is appropriate. A judge may award alimony based on the receiving spouse’s need and the paying spouse’s ability to pay, taking into account various factors like income, property, earning potential, the length of the marriage, and contributions to the marriage.
Alimony in Delaware may last for a period not exceeding half the length of the marriage unless the marriage was 20 years or longer. However, the court can decide otherwise based on factors like severe illness, age, or childcare responsibilities. The obligation to pay alimony usually ends upon the death of either spouse or the remarriage or cohabitation of the receiving spouse.
How to end a marriage in Delaware
To file for divorce in Delaware, you need to have lived in the state for at least six months prior to the filing. There is a mandatory waiting period of six months after the filing before any ruling is made. During this six months, the couple must be separated. You can still obtain temporary orders during this time for things such as child custody.
In Delaware, you can file for divorce if your marriage is “irretrievably broken and reconciliation is improbable.” This can be proven in several ways:
Voluntary separation
Separation caused by your spouse’s misconduct
Separation caused by your spouse’s mental illness
Separation caused by incompatibility
Important prenup case law in Delaware
Case law is the term lawyers use for describing court decisions on different matters that help interpret and apply the law. For example, “prenup case law” is court decisions regarding issues related to the validity and enforceability of prenuptial agreements and their terms. Let’s dive into some Delaware case law regarding prenups to better understand how prenups are treated in the state.
NE Prenup Case Law:
An evaluation of financial disclosure and what is sufficient in Delaware
A Delaware Supreme Court recently (2019) evaluated a prenup where one party claimed financial disclosure wasn’t done property. The court disagreed and said it was enforceable. Let’s discuss the details:
A couple drafted a prenup that heavily favored the wealthy husband. Despite the wife’s lawyer’s advice, she signed the agreement. The prenup included a financial disclosure statement, but the wife later claimed it was incomplete.
The wife claimed that husband left out the following assets:
– He failed to disclose ownership of his car in the financial disclosure statement.
– He failed to include a $3,000 life insurance policy.
– He inaccurately listed his ownership in a piece of land as 50% (worth $200,000) when it was actually 100%.
When the couple divorced, the court examined her claims. The court determined these discrepancies in the husband’s financial disclosure were minor compared to his overall wealth (he was worth a lot) and this didn’t significantly impact the wife’s understanding of his financial status. The court said this is sufficient financial disclosure, and thus, the prenup is enforceable.
Moral of the story? This case underscores the notion that while full financial disclosure is important in prenups, minor errors or omissions may not invalidate the agreement if they don’t substantially affect the overall understanding of the parties’ finances.
What happens when you sign a prenup too close to the wedding without an attorney in Delaware?
A couple married shortly after meeting, with the husband possessing significantly more assets. The husband initiated a prenuptial agreement, and although the wife had concerns, she signed it a few days before the wedding without fully understanding the terms or seeking independent legal counsel. https://www.gfmlaw.com/blog/master-finds-doctrine-laches-precludes-challenge-prenuptial-agreement
The wife was a homemaker during the marriage and had limited education, whereas the husband was a successful businessman. After the couple filed for divorce, she sought alimony, arguing she had not voluntarily entered into the prenup.
The result? The court agreed with the wife in that she did not voluntarily sign the prenup based on the following reasons:
– The wife did not have independent legal counsel and did not participate in negotiating the agreement.
– Her legal rights were not fully explained to her, and the agreement was signed close to the wedding date.
– The wife lacked financial knowledge, and the couple primarily focused on protecting pre-existing assets, not future ones or alimony.
– The agreement seemed to include standard language regarding alimony and future assets without either party noticing it.
The court explained that all of these factors combined resulted in their decision to set aside the prenup–one factor was not necessarily the deciding factor.
However, this court also made sure to note that even if a person refuses to get their own lawyer, it doesn’t automatically mean that they were forced into signing a prenup. It just so happens that, in this case, the wife did not actually have an opportunity to get legal counsel because it was too close to the wedding.
Coulbourn v. Lambert, No. CN96-07754, 1996 WL 860586 (Del. Fam. Ct. Dec. 19, 1996)
Was it voluntary? A 2022 Delaware Family Court analyzes a prenup…
A couple, who had a history of breaking up and reconciling, signed a prenuptial agreement 10 days before their wedding. The wife claims she was not involved in creating the agreement and felt pressured to sign it due to the upcoming wedding. The husband argues that the wife had a choice in signing the agreement.
Despite not having independent legal counsel and the short timeframe, the wife admitted she voluntarily signed the agreement because of her love for the husband.
The result? The court, considering all factors, concluded that the wife did voluntarily sign the prenup. That means that even though the prenup was signed 10 days before the wedding and one party did not have a lawyer, the prenup was still upheld.
T.A. v. C.A., No. 20-16002, 2022 WL 2256331 (Del. Fam. Ct. Feb. 10, 2022)
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The information on this page was last updated in August, 2024. Hello Prenup provides a platform for self-help. The information provided by Hello Prenup along with the content on our website related to legal matters (“Legal Information”) is provided for your private use and does not constitute legal advice. We do not review any information you provide us for legal accuracy or sufficiency, draw legal conclusions, provide opinions about your selection of forms, or apply the law to the facts of your situation. If you need legal advice for a specific problem, you should consult with a licensed attorney. Neither Hello Prenup nor any information provided by Hello Prenup is a substitute for legal advice from a qualified attorney licensed to practice in an appropriate jurisdiction.
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