You’re getting married in one of the most culturally rich locations in the entire country! Tennessee is home to the Great Smoky Mountains, almost all genres of music, and Elvis Presley. And now…it’s the place where you and your fiancé will begin your life together. That’s just one more bragging right this beautiful state has earned! But before you fire up your favorite bluegrass band and dance into married bliss… let’s talk about prenups! What do I need to know about prenups? Does Tennessee even uphold prenups? Read on to answer all of your questions and learn more about these important contracts.
1. Tennessee generally upholds prenuptial agreements
Tennessee upholds and enforces prenups if they follow certain rules. But first, what exactly is a prenuptial agreement? A prenup (also known as “premarital agreements” and “antenuptial agreements”) is a contract that enables a couple to determine before marriage how their assets and debts will be divided in the future should the marriage end in divorce. Prenups give couples the chance to have important conversations about finances. This gives them the ability to get on the same page about their expectations and plans for the future. Ideally, the couple signs the agreement, says “I do,” and lives happily ever after, never needing to revisit the prenup! However, should the time come when the marriage is no longer sustainable, the parties have already made the tough decisions regarding their property and are able to avoid the expensive and time-consuming process of divorcing without a prenup.
Courts in the great state of Tennessee generally uphold prenups and consider them binding and enforceable as long as they abide by the requirements laid out in the Tennessee Code. Prenuptial agreements must be signed “freely, knowledgeably and in good faith, and without exertion of duress or undue influence upon either spouse” (T.C.A. § 36-3-501).
2. You can write your own prenup, but it’s not recommended
Nothing in Tennessee law prevents you from writing your own prenuptial agreement. But, it’s not recommended! When Tennessee courts are determining the validity of your prenup, they pay attention to whether or not you and your fiancé hired attorneys. For a prenup to be valid, it must be entered into voluntarily. Having independent lawyers involved in the drafting process can speak to the voluntary nature of each signature. Also, it’s harder for a party to claim that he or she was coerced into signing the agreement if there was a lawyer walking them through the document and explaining the legal and financial consequences before signing.
If you and your partner decide not to hire attorneys, at least make sure that there is a reasonable amount of time between presenting your fiancé with the prenup and the actual wedding ceremony. When considering the fairness of your agreement, courts want to see that each of you had enough time to review the prenup and to talk with a lawyer (Baker v. Baker (2003)).
3. Tennessee divides marital property equitably
Tennessee defines “Marital property” as assets or debts acquired during the marriage, regardless of who earned the property or incurred the debt. In a Tennessee divorce, courts divide this property according to the equitable division principle. This means that in a divorce, marital property is divided fairly, and that doesn’t necessarily mean equally (50/50). These marital assets include, but are not limited to:
- Income
- Any increase in value of separate property which occurs during the marriage and is the result of the marriage or efforts of your spouse (financial or otherwise),
- Personal injury awards – limited to lost wages, medical bills paid with marital funds, and property damage to marital property related to the incident
Separate Property, on the other hand, is made up of real and personal property that a party owned or acquired prior to marriage. Separate property can include:
- Assets or debt acquired or incurred before marriage,
- Property acquired in exchange for property acquired before marriage,
- Property acquired by a spouse at any time by gift or inheritance,
- Appreciation of or income from property owned by a spouse prior to marriage, unless the appreciation is the result of marital efforts
Separate property is usually not included in marital property and is therefore generally safe from distribution upon a divorce unless your separate assets have been mixed with your marital assets. Read on to learn more!
4. Your separate property is not safe from division upon divorce without a prenup
This news might come as a shock, but it’s important for you to know that your separate property is vulnerable in a divorce! Without a prenup, Tennessee courts might view your separate property as marital property. To better explain this concept, it helps to understand the terms “commingling” and “transmutation.”
Commingling
Commingling occurs when separate property is mixed with marital property. This is a very common occurrence in a marriage. Married couples merge their lives and often share expenses and experiences. It’s easy to combine assets and pull funds from separate accounts when trying to provide for a family. But when separate property mixes or commingles with your marital property to a point that it’s hard to distinguish what was originally separate… courts might find that your separate property has become inextricably mingled and is now part of the marital estate and therefore subject to division upon divorce.
Example of Commingling
Chris built his savings account to be $100,000 before his wedding. He assumed that this account was classified as separate property and that it would be safe from a future divorce. Throughout the marriage, however, Chris deposited money from his savings account into a joint bank account he shared with his wife to pay for marital expenses. By mixing his separate money with marital funds over the span of a decade, the funds became so inextricably mixed that it was difficult for the court to trace which funds in the joint account were from the separate account. The court decided that the funds Chris deposited into the joint account had now become marital property.
Transmutation
Another way separate property is vulnerable to division upon divorce is if you treat separate property in a way that implies an intention to make it marital. This is referred to as “transmutation.” Courts will look at your behavior to try and discern your intention regarding property.
Example of transmutation
Jane owned a home before marrying Ben. After their wedding, the couple moved into Jane’s home and lived there together for the next 15 years. They used their joint bank account to pay for the mortgage, the bills, and the general upkeep of Jane’s home. By living there together and jointly contributing to the expenses of the home, they treated the property as a marital asset instead of a separate one. The court will likely see this home as being transmuted into marital property and will distribute the value of the home to both parties in a way it views to be fair.
5. A prenup can protect your separate property assets
You read that right! A prenup can prevent a separate property asset from being commingled or transmuted into marital property. The language in a prenuptial agreement can specifically clarify which property is to remain separate throughout the marriage and which property is meant to be part of the marital estate. In the examples above, Chris could have defined his inheritance as separate property in his prenup, and Jane could have classified her home as separate property in hers. A Tennessee attorney experienced in drafting prenups can add additional language to help ensure that your intentions are upheld in the future. If the parties do not have a prenup, they need to be hypervigilant to avoid mixing separate assets with marital assets.
6. A prenup can waive or modify alimony in Tennessee
A prenup in Tennessee can waive or modify alimony (aka “spousal maintenance” or “spousal support”). Alimony is monetary support one spouse gives to the other during or after a divorce. Although limits to alimony in prenuptial agreements are allowed, courts may strike or invalidate this language if it causes one spouse to require public assistance in order to meet their reasonable needs. In addition to the financial situation upon enforcement of the prenup, courts will also consider the employability, education, and health of the spouse seeking alimony when deciding whether the clause limited or waiving alimony was severely unfair (unconscionable) (Chapman v. Chapman (1989)). It should be noted that while alimony may be waived in a prenup, Tennessee does not allow parties to waive or contract around child support obligations, as doing so would violate public policy.
7. Requirements for a valid prenup in Tennessee
As stated above, Tennessee upholds prenuptial agreements if they follow certain requirements for a valid and enforceable prenup. The prenup must be:
- In writing
- Signed voluntarily by parties
- Include full disclosure of finances
- Not severely unfair at the time of enforcement (Randall v. Randall (1989)).
Courts look closely at the circumstances surrounding the signing of a prenup to make sure that the signatures of both parties were voluntary, and that there was full disclosure and understanding of the financials (Kahn v. Khan (1988) (Randolph v. Randolph (1996)). And even if an agreement meets all state requirements, courts can invalidate provisions that they find contrary to public policy (Chapman v. Chapman (1989)).
Bottom line on Tennessee prenups
Tennessee courts require that prenups follow strict requirements, including that they be in writing, signed voluntarily, that both parties have disclosed their financial situation, and that enforcement of the agreement won’t violate public policy. Hiring an attorney or utilizing a well-respected online prenup platform like HelloPrenup to draft your prenuptial agreement will help provide you with an expertly drafted prenup that abides by Tennessee state laws and ensures that your desires and intentions are clearly drafted in the language of the agreement.
Okay! You’ve learned a lot about Tennessee prenuptial agreements in the last few minutes. Now you can confidently make decisions regarding your prenup and get back to the fun parts of wedding planning. Speaking of… have you taste-tested any barbecue for your wedding reception?! If not, that should be your next step.
Originally from Memphis, Tennessee, Natori Arrindell is an experienced attorney specializing in family law, prenuptial agreements, and business law. With a dedicated practice serving individuals, families, entrepreneurs, and business owners, Natori is committed to providing comprehensive legal services to clients navigating the complexities of personal and professional relationships.
As a skilled negotiator and litigator, Natori is adept at guiding clients through challenging family-related legal issues with empathy and efficiency. Natori is also experienced in drafting, negotiating, and enforcing prenuptial agreements. By providing thoughtful guidance and facilitating open communication, she helps couples establish clear expectations and protect their assets before marriage. With a focus on preserving harmony and financial security, Natori ensures that clients enter into marriage with confidence and peace of mind.
On the business side, Natori offers comprehensive legal services to entrepreneurs and business owners. From drafting and negotiating contracts to advising on business formation and corporate governance, she serves as a trusted legal partner throughout all stages of business development. With Natori by their side, clients can navigate the complexities of the legal system with confidence and clarity.
When she’s not advocating for clients, Natori enjoys spending time with her 2 daughters.
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