Missouri Prenuptial Agreements
Congratulations on taking the plunge into the state with the best BBQ (Missouri)! Before celebrating your bachelor or bachelorette party in the Ozarks, read up on how Missouri courts treat prenuptial agreements and what you should know.
Here’s some information you should know about Missouri prenups.
A prenuptial agreement is a legal contract drafted between two spouses before marriage. It is only valid after the marriage takes place. In Missouri, statutes, and case law outline the rules and requirements for a valid agreement. A Missouri prenuptial agreement may include alimony modifications, property division, insurance policies, and more.
On the other hand, a prenuptial agreement in Missouri cannot limit or contract around child support, child custody, matters violating public policy, or grossly unequal terms (a.k.a., unconscionable terms).
How to create a Missouri Prenup
The contract must be in writing
The terms must be lawful
Signatures from both parties (HelloPrenup recommends initialing each page, and having your signatures notarized!)
Must be executed freely, fairly, willingly, understandingly, and in good faith
Notarized signatures (no, you should not skip this step!)
Full disclosure of all financial assets and income *Do not skimp on this*
Both parties should consult with their own attorneys (this is not a hard requirement but is highly recommended).
It must be executed with enough time before the wedding to review the agreement (30-days is a good starting point)
No terms involving child custody
No terms related to child support
No terms that violate public policy
No incentives for divorce
No provisions that are unconscionable (i.e., gross inequality)
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Freely, fairly, knowingly and understandingly
To enforce or not to enforce, that is the question. A Missouri prenup case from 2011 lays out the framework for how Missouri courts deal with prenups these days. The story goes like this. In 1978, Husband and Wife got married and signed a prenup the day before the wedding. The couple discussed the prenup in a meeting four days prior but ended up signing it the day before the wedding. Husband was a third-year medical student with about a $200,000 net worth, and Wife was a nurse with a substantial net worth of upwards of $10 million. Husband claimed he didn’t have access to the funds to pay for an attorney, so he signed without one. They were married for 30 years before filing for divorce.
In the divorce proceedings, Husband wanted the court to declare the prenup invalid and Wife wanted the opposite. He argued that since he didn’t have an attorney and the prenup was executed the day before the wedding, it shows that he didn’t enter the agreement freely, fairly, knowingly, and understandingly. One way to prove a Missouri prenup is unenforceable is to show that it was not entered freely, fairly, knowingly, and understandingly.
The court disagreed with Husband; they concluded that he did enter the agreement freely, fairly, knowingly, and understandingly. The court said that he could’ve paid for an attorney if he really wanted to (his net worth at the time was $200,000 and an attorney to review the prenup at the time cost $5,000). The court also noted that Husband was in an equal bargaining position as Wife regarding age, sophistication, education, employment, and experience. He was a soon-to-be doctor, and she was a nurse. He even claimed he was a genius with an IQ of 160 at the time! Therefore, he understood exactly what he was signing. These facts lead the court to declare this prenup was entered into freely, fairly, knowingly, and understandingly.
Lesson to learn from this case: (1) While it’s important to execute your prenup at least 30 days before the wedding if the circumstances show that you knew what you were getting into, a court will still uphold the prenup even if it was executed less than 30 days before the wedding. The point of the 30-day buffer is to make sure the person understands what they’re signing and isn’t coerced into signing it. (2) If you have the resources to obtain an attorney and decline to do so “because you love your spouse,” it won’t later give you an excuse to show you didn’t know what you were signing.
How Missouri courts determine what is fair
As with many states, Missouri looks at the fairness of a prenuptial agreement (when it was executed) to determine if it should be enforced. Missouri courts rely on the logic that a prenup should be entered “freely, fairly, knowingly, understandingly, and in good faith with full disclosure” to be considered fair. The factors that they use to determine fairness include the spouses’ access to their own attorney, the amount of time available to review the prenup, the bargaining positions of each spouse (i.e., each spouse’s age, sophistication, education, employment, and experience), and whether their assets were disclosed.
In 2006, a court of appeals in Missouri evaluated the fairness of a prenup which eliminated a wife’s right to alimony and attorney’s fees. In other words: Was it fair that the prenup eliminated her right to spousal support and the attorney’s fees from the divorce proceedings? For starters, eliminating spousal support and attorney’s fees is acceptable, but were the circumstances surrounding the execution of the prenup fair?
The court, in this case, looked at the factors listed above. They looked at the wife’s ability to have her own attorney, the time she had to review the prenup, the bargaining positions of each spouse, and whether all the assets were disclosed. The court found that she had her own attorney, she received full disclosure of the husband’s assets, and both spouses were in their mid-twenties and the banking industry (i.e., they had equal bargaining power). The only questionable thing was that she only had two days to review the agreement. However, considering all the factors as a whole, the court determined that it was fair enough to enforce the prenup.
What about unconscionability?
Most states have their version of what unconscionable means. Usually, states declare that it should not be enforced if a prenup is unconscionable. In Missouri, a prenup is unconscionable when “inequality is so strong, gross, and manifest that it must be impossible to state it to one with common sense without producing an exclamation at the inequality of it.” Whew, that’s a lot. What does that mean in plain language?
Unconscionable = the prenup is absurdly unfair.
So, what does unconscionable look like in real life? In 1996, a Missouri court of appeals declared a prenup invalid because it was unconscionable. The prenup waived the wife’s right to all marital property! In other words, the prenup stated that if a divorce were to occur, she would be entitled to NOTHING! She’d walk away with $0 and nowhere to live. That’s absurdly unfair, right? Right! Both parties should walk away with at least something after the divorce, it doesn’t have to be 50/50 but it should not be 0/100.
Official term for divorce in Missouri: Dissolution of marriage
In Missouri, courts refer to divorce as the “dissolution of marriage.” Dissolution of marriage occurs when two people, who have been legally married, begin the court process to end the marriage. Missouri is a no-fault state, meaning that you can’t argue that your spouse “did something wrong” like adultery to end the marriage. There’s only one ground to base your dissolution of marriage on: the marriage is irretrievably broken.
There are two ways to end a marriage in Missouri: annulment or divorce. An annulment ends a marriage that was invalid from the start. Grounds for annulment include bigamy, underage parties, related parties, a mentally incompetent spouse, or fraud. You may also file for legal separation, which does not end the marriage but achieves almost everything a divorce would, such as determining child custody, property division, and maintenance.
Only one party needs to begin the process of ending a marriage (but don’t get us wrong, it takes two to make it work!) If one party wants to end the marriage, it is within their sole right, and the other non-participating party does not have to agree to begin the process. If a non-participating spouse does not partake in the proceedings, a default judgment will be entered and force the divorce to proceed.
Each state has residency requirements that must be fulfilled before you can divorce in that state. In Missouri, these are the residency requirements:
- One spouse is a resident of Missouri for at least 90 days before filing
- For more fine print on the dissolution of marriage in Missouri, read MO Rev Stat Section 452.305
Official term for property not considered part of the marital estate in Missouri: Non-marital property
Property is either considered non-marital property or marital property. Marital property is split up in the divorce; non-marital property is not. Generally, non-marital property in Missouri is property acquired before the marriage or gifted or inherited by one spouse during the marriage. On the other hand, marital property is property acquired during the marriage. For example, let’s say you purchase a car for yourself while you are married; this will be considered marital property and may be divided in the divorce. If this framework is not to your liking, you should specify it clearly in a legal document, such as a prenuptial agreement.
Official term for spousal support in Missouri: Spousal maintenance
In Missouri, alimony is often referred to as “spousal maintenance,” the financial support ordered by a court to pay one spouse to the other. Spousal maintenance may be ordered permanently, short-term, or temporarily during a pending divorce. A Missouri judge may find spousal maintenance appropriate when one spouse lacks sufficient means to meet their needs and cannot find employment. Missouri’s goal in providing spousal maintenance is to close the gap between the means of both spouses. If this framework is not to your liking, you should specify it clearly in a legal document, such as a prenuptial agreement.