Welcome to Delaware Prenup Laws 101! If you’re a Delaware native, you probably already know that Delaware was the first state to sign the U.S. Constitution. But you may not know what you’ll need to have a valid and enforceable prenup in Delaware, a.k.a. all of the details on Delaware prenup laws. From signature requirements to voluntariness–there’s a lot to learn. But don’t worry; we’ll walk you through everything you need to know. Let’s dive into all things Delaware prenups!
What’s the big deal about prenups?
A prenup (also called a “premarital agreement” in Delaware) lets you and your fiancé decide how to divide assets and debts in the event of a divorce. Without a prenup, Delaware’s default laws will make these decisions for you. Since Delaware is an equitable distribution state, a court will divide your assets and debts based on what’s fair and just and not automatically split it up 50-50. However, what a court thinks is fair may not match your preferences. Additionally, without a prenup, the court has the discretion to award spousal support (also known as “alimony” in Delaware). If this is something you don’t want to leave for a judge to decide, a prenup is your best bet.
Are prenups valid in Delaware?
Yes, as long as the prenup conforms to Delaware’s statutory requirements. Delaware prenups are governed by Delaware’s Uniform Premarital Agreement Act (Del. Code tit. 13 § 321–328). Here are the requirements:
- The prenup must be in writing.
- Both parties have to sign the prenup.
- Both parties must voluntarily sign the prenup, meaning neither party can be pressured or coerced into signing.
- Both parties must provide the other with fair and reasonable financial disclosure.
- The terms must not be unconscionable (i.e., unfair or one-sided).
- The prenup cannot include terms that violate Delaware law or public policy (i.e., provisions about child support or custody).
As you can see, the above requirements are put in place to keep contracting with your fiancé fair and balanced while still allowing you both to protect yourselves.
What can you include in a Delaware prenup?
The possibilities are (almost) endless! For an idea of what you can include in a Delaware prenup, Del. Code tit. 13 § 323(a) has you covered. Your prenup can address any of the following:
- Property rights.
- How you can use your property (i.e., buying it, selling it, or leasing it).
- What will happen to your property if you legally separate, divorce, or pass away.
- Spousal support arrangements, including modifying or eliminating support.
- Creating estate planning documents following the terms of your prenup.
- How life insurance benefits will be distributed upon your passing.
- Which state’s law will govern the prenup (a.k.a. “choice of law” provision).
- Anything else, as long as it doesn’t violate Delaware law or public policy.
Remember, this list is just a jumping-off point in terms of the types of clauses you can include in your prenup. For example, do you have a dog whom you practically treat like your child? You can include a Pet Clause in your prenu,p too!
What can void a Delaware prenup?
In Delaware, there are a few things you should steer clear of in your prenup. Check out what you should avoid:
- Pressuring Your Fiancé to Sign: Both of you must sign the agreement voluntarily (Del. Code tit. 13 § 322). If the court finds that one spouse lacked voluntariness at the time of the prenup, the court can decide not to enforce the prenup.
- Incomplete Financial Disclosure: List the value of all of your assets and debts. For example, if you own real estate, it’s not enough to just list the address of where it’s located. You also need to include the fair market value as well as the amount of any encumbrances on the title (i.e., mortgages). If you don’t, a Delaware court can toss out your prenup for a lack of fair and reasonable financial disclosure (Del. Code tit. 13 § 326).
- Child Support or Custody Terms: Arrangements for child custody and support are reserved for divorce proceedings. You cannot agree to these terms in your prenup (Del. Code tit. 13 § 323(b)).
- Unconscionable (unfair or one-sided) Terms: A prenup cannot be so overwhelmingly in favor of one spouse that it leaves the other with practically nothing. A Delaware court is highly unlikely to enforce such an agreement (Del. Code tit. 13 § 326).
- Terms that Violate the Law or Public Policy: A prenup can’t require another party to break the law or violate public policy (Del. Code tit. 13 § 326).
Make sure you steer clear of the above things and you should be well on your way to an enforceable agreement in Delaware!
Wait, you mean I have to disclose all of my financial information?
You bet! The idea behind Delaware’s standard of “fair and reasonable” financial disclosure is so that both parties have a clear idea of their future spouse’s financial situation.
Let’s take a look at some recent Delaware case law to understand the level of financial disclosure that Delaware courts require. In Silverman v. Silverman, the Delaware Supreme Court enforced a prenup where the Husband failed to disclose a vehicle, a life insurance policy worth $3,000, and misstated his ownership interest in some real estate. The Husband listed his ownership interest as 50% rather than 100% for a piece of land worth $200,000. The court determined that the Husband’s overall net worth was so substantial that these discrepancies in his financial disclosure did not impact the Wife’s understanding of his financial status.
Bottom line? You should still be as detailed and accurate as possible in your financial disclosure. However, minor discrepancies will not necessarily invalidate your prenup as long as it does not impact the understanding of your overall financial status.
Can you waive spousal support in a Delaware prenup?
Yes, you can waive the right to seek spousal support (known as “alimony” in Delaware) (Del. Code tit. 13 § 323(a)). If you agree to waive your right to seek alimony in a prenup, you will not be able to request alimony from the court at the time of divorce (Del. Code tit. 13 § 1512).
Alimony is financial support that is awarded to one spouse during or after divorce. It’s designed to level the financial playing field, particularly where one spouse has a demonstrated financial need and the other spouse has the ability to pay. For example, let’s say one spouse sacrifices their career to support their spouse and/or children during the marriage. The court has the discretion to determine whether alimony is appropriate and to set the amount and duration of an award.
Check out the fine print in Del. Code tit. 13 § 1512 to see the factors that Delaware courts can consider when deciding to award alimony.
How close to the wedding can you get a prenup in Delaware?
Delaware does not have a specific time frame for when you have to sign your prenup before your wedding day. As a rule of thumb, it’s a good idea to get everything finalized well before the big day so that you can iron out any details and seek legal advice if you want to.
Take the Delaware case, Coulbourn v. Lambert, No. CN96-07754, 1996 WL 860586 (Del. Fam. Ct. Dec. 19, 1996), for example. The couple signed a prenup two days before the wedding. It’s important to note that the Husband had significantly more assets than the Wife and was a successful businessman. The Wife was a homemaker during the marriage and had limited education. The Husband initiated the prenup and presented it to the Wife. Although she did not have a full understanding of its terms, the Wife signed the prenup a few days before the wedding without seeking legal representation. At the time of divorce, the Wife requested alimony and argued that the prenup was invalid because she did not voluntarily enter into the agreement.
The court agreed with the Wife and set aside the prenup for the following reasons:
- The Wife did not have her own legal representation and was not involved in negotiations.
- Wife did not understand her legal rights and what she was agreeing to in the prenup.
- Because the prenup was signed so close to the wedding date, the Wife did not have enough time to seek independent legal representation.
- The Wife was not financially savvy, and the agreement protected pre-marital assets rather than marital assets and alimony.
The bottom line? The court focused on several factors to reach its decision to set aside the prenup. Not having legal representation does not automatically invalidate a prenup in Delaware. However, not having the opportunity to consult with independent legal representation can.
Does a Delaware prenup need to be notarized?
Delaware doesn’t require a prenup to be notarized for it to be valid and enforceable. But it’s still a good idea to notarize it. Why? Because notarization adds an extra layer of protection in case your partner decides to challenge the agreement one day. Your spouse would have a very difficult time trying to deny their signature on a notarized document. Ultimately, it’s an easy and affordable way to increase the chances of enforceability of your prenup. Plus, you can do it totally online nowadays!
Main takeaway on Delaware prenuptial agreements
Well, there you have it! That concludes your crash course on Delaware’s prenup laws. A prenup can be a safe haven for whatever life may throw at you as a couple. Just make sure your prenup complies with Delaware’s legal requirements, such as signatures and financial disclosure, and avoid any fraud or duress. Don’t forget to give yourselves plenty of time to get everything squared away. Happy planning!
0 Comments