A prenuptial agreement, also known as a prenup, is a legally binding contract created by two individuals who are planning to get married. This agreement goes into effect once married. Prenuptial agreements provide a means for both parties to establish guidelines for the management of their respective properties and assets, should the marriage conclude due to divorce, and sometimes, the passing of a spouse.
What is the UPAA/UPMAA?
The Uniform Premarital Act was developed in 1983 to encourage consistency and coherence in the application of prenuptial agreements (also known as premarital agreements or antenuptial agreements) throughout the various states. In plain English: the UPAA lays out a set of rules for prenups (putting prenups in writing, requiring signatures, etc.). In 2012, it underwent a revision and was renamed the Uniform Premarital and Marital Agreements Act. Presently, twenty-eight (28) states have embraced either of these standardized frameworks.
Kentucky is not one of the twenty-eight states or commonwealths that has adopted the UPAA/UPMAA Standards. However, prenups are still “allowed” but are governed by the unique laws of Kentucky instead of the standardized framework of the UPAA.
Who Should Get a Prenuptial Agreement in Kentucky?
Prenuptial agreements cater to more than just rich people. In short, a prenup lays out property division and “who gets what.” Even if you have a $10,000 total between the two of you, how should that be split up? Just because you don’t have millions doesn’t mean you don’t have SOMETHING to split. Enter the prenup.
In Kentucky, operating under the principle of “equitable distribution,” the courts determine fairness rather than a mere equal split of assets in divorce cases. In other words, a court decides how your stuff is split up, it’s not an automatic 50/50. With a prenup, the courts are inclined to uphold such an agreement if one is in place.
The long and the short of it is that pretty much anyone can benefit from a prenup, even if they aren’t rich. Couples with prior marriages, children from previous relationships, and/or separate property/business interests can especially find value in a prenuptial agreement.
“Choice of Law”
Where you live (or where you will live in the future) is a crucial factor to bear in mind when creating a prenup. Why? Because you need to select a state’s laws to govern your prenup. Given that Kentucky isn’t a participant in the UPAA/UPMAA, it’s vital to contemplate your future place of residence. An agreement made before marriage in Kentucky might not hold weight beyond the State’s borders should you relocate post-marriage. If the possibility of moving out of Kentucky after marriage is on the horizon, seeking legal counsel from an attorney in the prospective state(s) of residence becomes imperative. This step ensures that the premarital agreement crafted aligns with the particular requirements of that state.
What Can A Prenuptial Agreement Contain?
A prenuptial agreement can specify what happens to property and assets in the event of divorce, and sometimes death. In Kentucky, an agreement can specify, for example:
- What is separate property versus joint property
- Responsibility of separate debt versus shared debt
- Retaining inheritance and gifts to their rightful owner
- Alimony rights
- Waiving certain inheritance rights
A Kentucky prenup cannot contain clauses about child support, child custody, child visitation, or any other clause against public policy.
What Makes A Prenuptial Agreement Enforceable in Kentucky?
In Kentucky, Prenuptial Agreements governed by the Lawson v. Loid, 896 S.W.2d 1 (Ky. 1995) Kentucky Supreme Court decision (see case studies) and other case law. In order for an agreement to be enforceable it must be signed before marriage. The agreement also must be in writing and signed voluntarily and notarized by both parties in the State of Kentucky. Both couples should include full and complete financial information (this is known as financial disclosure), including all liabilities and assets at the time the prenup is entered into.
What Makes a Prenuptial Agreement Unenforceable?
A prenuptial agreement is unenforceable in Kentucky if it includes provisions that violate public policy or criminal laws, including provisions about child matters (child support, child custody, and/or child visitation). Agreements are also unenforceable if they include extremely unfair terms if the agreement doesn’t include financial disclosure, and/or if the waiver of alimony would require one spouse to go on public assistance. Prenups should also not be made when under fraudulent circumstances. Both people must go into the prenup in good faith.
Notable Cases in Kentucky with regard to Prenuptial Agreements
Kentucky’s First Prenuptial Case
Edwardson v. Edwardson, 798 S.W. 2d. 941 (1990)
Until this pivotal case was heard, prenuptial agreements were not allowed in Kentucky. Mr. and Mrs. Edwardswon drafted a contract stating that if there were to be a divorce, Mrs. Edwardson would receive seventy-five dollars ($75) a week in spousal maintenance (a.k.a. alimony). Eventually, the couple divorced after a two-and-a-half-year marriage. The court’s original view was that the contract was essentially planning for divorce and it violated public policy (i.e., the prenup is not enforceable). After a review of case law, the Kentucky Supreme Court decided to allow prenuptial agreements in Kentucky as long as there was full financial disclosure, no unconscionable terms, no fraudulent circumstances, and no clauses about child support/custody.
Financial Disclosure: A Tale on Kentucky’s Requirement
Lawson v. Loid, 896 S.W. 2d. 1 (1995)
Essentially, the Supreme Court of Kentucky told us from this case that whoever is relying on the agreement must prove the prenup is enforceable. For example, if a wife wants to enforce the prenup because she is relying on the terms of such an agreement, she needs to prove it’s enforceable, not the husband. Part of the enforceability of a prenup in Kentucky is full and complete financial disclosure. If a prenup doesn’t have full and complete financial disclosure at the time of signing, it’s not valid. There are other enforceability requirements, such as the prenup must be in writing, not unconscionable, and not created under fraud, among other things. In this case, the court told us that even if a spouse doesn’t receive explicit financial disclosure, but they are aware of their spouse’s finances, then financial disclosure is complete.
What is an Enforceable Prenuptial Agreement? (The Gentry Test)
Gentry v. Gentry, 798 S.W. 2d. 928 (1990)
Mr. and Mrs. Gentry had been both previously married when they decided to tie the knot a second time. They both had children prior to their marriage and separate assets. They decided to sign a prenuptial agreement, overseen by a family friend, who was an attorney. Once married, Mrs. Gentry quit her job and stayed at home. Although she earned no income, she received many “gifts” from Mr. Gentry, while he ran a successful company. Both had separate bank accounts, and Mrs. Gentry received a monthly allowance. The prenuptial agreement essentially stated each party was to keep their separate property and assets.
Eventually, they filed for a divorce. Mr. Gentry, due to running his company, had substantially more net worth than his wife (so you can see where this is going). Mrs. Gentry didn’t like the prenup terms anymore since she had less money, so she argued the prenup was not valid for various reasons. However, the court found that the agreement had been signed willfully and that there had been no deception involved, and therefore the agreement was valid and enforceable.
This case would later lead the way to the “Gentry Test” raising three questions for the courts to consider when determining the enforceability of future Kentucky prenuptial agreements:
- Was the prenuptial agreement signed under duress, or as a result of fraud or mistake?
- Is the agreement unconscionable (grossly unfair to one party)
- Has financial circumstances drastically changed that it would make the agreement unreasonable or impossible to execute?
If the answer is “yes” to the above three questions, then the prenup is likely going to be thrown out in a Kentucky court.
Kentucky Terms and Statutes
- Divorce: There are two types of divorce in Kentucky, “no-fault” and “at-fault” divorce. “No-fault” divorce is based on irreconcilable differences, and the inability to repair the marriage, while in “at fault” divorce, one party must prove the other party committed an act such as adultery, abandonment, or abuse. In most divorce cases, “at-fault” divorce is more costly and time-consuming because the parties have to provide evidence of the fault (i.e., they need to prove abandonment, abuse, adultery, etc.).
- Separate Property: individual non-marital property, for example, one party’s property or possessions owned before marriage or items gifted or inherited to one party. Additionally, if something is deemed “separate property” in a prenup, it’s meant to be kept separate from the other spouse in the event of a divorce.
- Marital property: is joint property or assets acquired after marriage and subject to division under Kentucky’s “equitable property” laws at the time of divorce.
See KY Rev Stat § 403.190 (2014)
- Maintenance (a.k.a. Alimony) is an amount of money ordered by the courts from one spouse to pay the other spouse. The amount and duration of alimony are determined by several factors laid out by the state. In Kentucky, this may include the need for support by one spouse, the ability of the person requesting alimony to support themselves, the standard of living during the marriage, the ages of the spouses, and more.
Traditional Prenup Costs versus HelloPrenup Costs
According to Business Insider, the average cost of a prenup across the United States is $2,500 (this cost is for getting a prenup the “traditional” way of hiring a good old-fashioned attorney instead of using online platforms like HelloPrenup). However, this price is just an estimated average. The cost of a prenup can skyrocket up to $10,000 or even MORE, depending on your situation. If you have tricky finances, complex requests, or simply hire an expensive attorney, you could be looking at a very hefty bill.
Don’t run away just yet!
Compare this traditional cost of $2,500+ to HelloPrenup’s cost of $599 per couple. That is an incredible savings of about $1,900 OR MORE! What can you do with $1,900? Buy a Prada bag… go on an all-inclusive weekend getaway… get an electric bicycle… the options are endless!
Even if you utilize HelloPrenup’s platform and also want an attorney’s review for a “gut check” – you would be saving yourself a lot of money. How? Well, HelloPrenup cuts into the attorney’s costs of drafting the prenup itself. HelloPrenup’s software automatically drafts your prenup using the answers you select in our software. For example, let’s say you use HelloPrenup and you also want a lawyer to simply review it for your peace of mind. The lawyer might charge you a flat rate of $600 (their hourly rate is $300 and it will take 2 hours) to review the prenup and hold a Q&A session with you. Now you’re at $1,200. You are still saving yourself over $1,000!!
How to Find a Prenup Lawyer in Kentucky
Now that you’ve got the basics down, how do you actually go about finding a Kentuckian prenuptial agreement lawyer? Here are some tips on how to find an excellent lawyer to assist you in your prenup journey:
Google (of course)
Begin your search by googling “prenup lawyer Kentucky” or “prenuptial agreement lawyer [insert your town name].” Take a look at what pops up in this search. You may find some well-established law firms in your area that specialize in family law or matrimonial matters. You want a family law lawyer, but you also want a family law lawyer who specializes in prenups. Not all family lawyers are created equal, and some may not do prenups.
Ask for Recommendations
Good ol’ word of mouth. Seek out recommendations from friends, family members, and/or colleagues who have previously hired a family law attorney. Personal referrals can provide valuable insight into the attorney’s skill, character, and overall “vibe.” Don’t forget–you want a PRENUP attorney, someone who is familiar with prenups.
The Kentucky Bar Association
Contact the Kentucky State Bar Association for referrals to reputable family law attorneys specializing in prenuptial agreements. If you click this link, you will see a page (amongst other pages) with resources to connect you with qualified professionals.
How to Get Married in Kentucky
Of course, after you sign that prenup, you’ll need to actually get married! This is the fun part. Planning your big day in the Bluegrass State involves a few important and technical steps that you’ll want to keep in mind.
Your first duty: get a marriage license. Get on over to the county clerk’s office in the county where you’ve chosen to hold your wedding. There, you’ll need to secure a marriage license, a vital document that officially allows you to wed. No marriage license, no marriage. It’s a joint effort, so both you and your partner will need to be present to apply. Remember to bring along valid identification, like your driver’s license, birth certificate, and/or your passport.
The county clerk’s office will walk you through the application process, and once everything is in order, you’ll walk away with your marriage license in hand (or they may mail it out to you).
Some states have what is known as a “waiting period” after you get your marriage license. Some states may require you to wait 30 to 90 days between the marriage license and the actual wedding. The good news? Kentucky doesn’t have this waiting period requirement.
The one small caveat to keep in mind is that the marriage license in Kentucky stays valid for 30 days. So once you get that marriage license, you have 30 days to tie the knot…otherwise, you’ll need to reapply.
There are no other requirements in Kentucky, besides a small fee, which may vary depending on the county you are in. Regardless, you should always touch base with the county clerk’s office in which you are applying to make sure you don’t miss anything!
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: [email protected]
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