Mississippi Prenuptial Agreement
Looking for a Mississippi Prenuptial Agreement? Here’s what you need to know for enforceability and how to get started.
Prenup basics in Mississippi
Prenuptial agreements, also known as “antenuptial agreements” in Mississippi, are legal contracts that couples put into place before getting married. These agreements cover various aspects, such as property ownership, division of assets and debts, alimony, inheritances, tax planning, pet custody, and other important topics. While prenups serve a practical purpose of establishing clear expectations and boundaries regarding finances, prenups can also be emotionally significant as they encourage open communication about money and potential future scenarios. In Mississippi, these agreements are governed by state laws, including specific statutes like Miss. Code Ann. § 93-3-7 and the body of relevant Mississippi case law (which we talk about more below) that has shaped the legal landscape on prenups in the state.
Creating a valid and enforceable prenup in Mississippi
The laws in Mississippi regarding prenuptial agreements are carved out by court decisions (i.e., case law). The courts in Mississippi focus on fairness.
Here’s what you need to know about getting a prenup in this state:
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- The prenup must be in writing and signed.
- The prenup must be entered into voluntarily by both spouses.
- Both spouses must disclose their financials (assets, debts, income, inheritances, etc.)
- The court may evaluate whether the terms were fair (substantive conscionability) at the time the prenup was made. This means were the terms reasonably fair and not egregiously one-sided.
- (See Sanderson v. Sanderson, 170 So. 3d 430, 435 (Miss. 2014) and McLeod v. McLeod, 145 So. 3d 1246 (Miss. Ct. App. 2014) for more details on what makes a prenup valid and enforceable).
Another thing to keep in mind is that the contents of a prenup in Mississippi must not go against public policy.
Do I need an attorney for my Mississippi prenup?
The Supreme Court of Mississippi stated in 2014 that having a lawyer is not necessarily required in order for a prenup to be considered fair. However, whether each spouse had a reasonable opportunity to consult with independent counsel (if they so desired) is an important consideration in evaluating the overall enforceability of the contract. This means did the person have the resources and time to hire a lawyer if they wanted one? They don’t have to actually get one, they just needed the time to do so.
Default law on alimony
The court may award alimony in one of four forms: There are four types of alimony: periodic (e.g., on a monthly basis), lump-sum (one-time payment), rehabilitative (support while the spouse finds work), and reimbursement (payment to reimburse the other spouse for supporting them).
The factors a judge must use in determining an award of alimony include:
- Income and expenses of the spouses,
- Age, health, and earning capacities of the spouses,
- Needs of each spouse,
- Obligations and assets of each spouse,
- Length of the marriage,
- Presence or absence of minor children in the home, which may require that one or both of the spouses either pay, or personally provide, child care,
- Standard of living of the spouses,
- Tax consequences of awarding alimony,
- Fault or misconduct of either spouse,
- Whether either spouse was wasteful with any of the assets, or
- Any other factor deemed by the court to be “just and equitable” in connection with the setting of alimony.
- (Ewing v. Ewing, 203 So.3d 707 (Ct. App. Miss. 2016).
As you can see, without a prenup in Mississippi, the amount and duration of alimony can vary greatly depending on your specific circumstances. However, with a prenup, you can ensure your alimony fate is pre-determined.
Default law on property division
Without a prenup in Mississippi, the court divides property based on principles of equity, but does not automatically split assets 50/50. The court, instead, will divide up marital property (assets acquired during the marriage) according to what it deems as fair.
According to Ferguson v. Ferguson, 639 So.2d 921, a court should consider the following factors when dividing a Mississippi’s couple’s marital property:
- Contributions of either party to the accumulation of assets,
- How each spouse disposed of marital assets,
- The market value and the emotional value of the assets to each spouse,
- The value of each party’s separate property assets (not subject to distribution),
- The tax, contractual, legal, and other economic consequences of the proposed distribution,
- The ability to make a clean break between the couple by minimizing the need for ongoing financial ties through alimony,
- Each spouse’s need for financial security (combining assets, income, etc.), and
- Any other factor that in equity should be considered.
At the end of the day, the court has broad discretion to determine what happens to your assets in a divorce without a prenup. However, with a prenup, if it is valid and enforceable, your rules will apply.
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How to end a marriage in Mississippi?
In order to file for divorce in Mississippi, you need to have lived in the state for at least 6 months leading up to the filing. Miss. Code § 93-5-5. In addition, there is a 60 day waiting period before you can get an official divorce decree. Miss. Code § 93-5-2.
In Mississippi, you can file for divorce under the grounds of irreconcilable differences (which means no one was at fault) or for a specific grounds, such as adultery, impotency, or habitual drunkenness. Miss. Code § 93-5-1. The more common option is to file under irreconcilable differences (no-fault) because it takes less legal power–no need for evidence and he said-she said of trying to prove your spouse actually committed adultery (or another fault ground).
Mississippi prenup case law
“Case law” refers to court decisions that help define and shape the law. Let’s dive into what Mississippi case law says about prenups.
An evaluation of fairness
In this case, Julie, the wife, argued the prenup was unenforceable for several reasons, but for purposes of this case summary, we’re going to discuss the following two reasons:
– She argues she had no independent counsel representing her during the prenuptial agreement process.
– She claims the disparity in separate estates raises concerns about fundamental fairness.
The result?
While the court acknowledged that Julie’s estate was smaller than Ray’s, the court emphasized that Julie willingly negotiated and signed the agreement, and even if it turned out to be a bad deal for her, the court wouldn’t interfere.
The court’s explanation
The court stressed that prenuptial agreements are enforceable contracts in Mississippi as long as they are executed fairly with full disclosure. In this case, both Julie and Ray signed a valid agreement. Even though Ray’s assets increased significantly over time, the court maintained that the purpose of the prenuptial agreement was to protect premarital and inherited assets, which it successfully did.
In addition, the court noted that having a lawyer is not required to fairly execute a prenuptial agreement in Mississippi. In addition, the court further noted that Julie wanted the prenuptial agreement, understood the agreement, and chose not to seek independent counsel on her own accord.
Takeaway
Essentially, the court’s stance was that contracts involve risks, and the fact that one party benefited more from the agreement over time doesn’t invalidate its original intent and purpose. And the absence of a lawyer for a prenup will not invalidate it (without more).
Is a prenup unconscionable if there is a huge difference in wealth between the couple?
Let’s talk about a recent prenup case stemming from 2023, where a Mississippi Court of Appeals heard a case where a husband waived his right to inherit from his wife’s estate in a prenup. Then, after she died, he asked the court to throw out the prenup because it was one-sided (so he could inherit from her estate).
The prenup
Eight days before their wedding, Sarah (wife) and Charles (husband) signed a prenuptial agreement. The agreement stated that any property they owned, whether acquired before or after the marriage, would remain their separate property. They each had the right to control and dispose of their own property without any claims from the other spouse. They also waived any rights to inherit from each other’s estates if either person died. At the time of signing, they both disclosed their finances, and Sarah had much more money than Charles.
Sarah’s will
Sarah’s will primarily left her home and adjoining property to her sister Bonnie. If Bonnie passed away before Sarah, the property would be equally divided between Sarah’s nephew and niece. The will also requested that if Charles survived Sarah, he be allowed to live in the home as long as he wishes and that it is agreeable to the heirs. Sarah’s remaining estate was left to an irrevocable trust managed by her nephew-in-law for the benefit of her sister, nephew, niece, and their descendants.
Charles’ argument
Charles argued that the prenup was unconscionable (egregiously one-sided), so it should be thrown out. He said it was “unconscionable” because he “received nothing in exchange for waiving his statutory right to renounce” his wife, Sarah’s will.
The court’s holding
The court disagreed with Charles and found that the prenup was NOT unconscionable (i.e., it was not overly one-sided). The court explained that the prenup was equally binding on both Sarah and Charles (both people waived their rights to each other’s estates), even though their assets were unequal. (Sarah had more money). The court also stated that an agreement is not automatically unconscionable just because it maintains the existing wealth disparity between the couple.
The bottom line
Just because there is a great wealth disparity between a couple, and both parties waive their rights away to the other’s stuff, the person with less money can’t later say it’s unfair. In other words, “buyer’s remorse” won’t work here!
Est. of Bell v. Est. of Bell, 372 So. 3d 1008 (Miss. Ct. App.)
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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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