Have you heard of an antenuptial contract before? Even if you have not heard this specific terminology, chances are that you are familiar with the idea of an antenuptial contract. The more commonly used term for these sorts of contracts is a prenuptial agreement – often shorted to simply a “prenup.” How much do you know about these legal documents, and how can they impact your marriage? Read on to learn just what an antenuptial contract (most often shortened to an “ANC”) can do for your marriage and the process of going about getting one.
First thing’s first – what exactly is an ANC or a prenup? An ANC or Prenup, is a contract written between two individuals who plan to marry that determines how assets will be split up in the case of their marriage terminating (a divorce). While antenuptial contracts often get a bad rap thanks to the more extreme ones that are implemented by celebrities like Hugh Hefner or Mark Zuckerberg, these contracts are actually on the rise in popularity. This is thanks to the statistics showing that the average age of marriage is trending up. Therefore, the older that individuals get married, the more likely they are to have acquired significant assets that they would be wise to protect with the help of an antenuptial contract.
Void vs. Voidable: Contract Basics
Well, like all other legal contracts, an ANC is drafted between two parties, and, if it is to be used in a court of law, must be able to hold up to legal standards so that it is not rendered void and therefore unusable. A void antenuptial contract would effectively dismiss both parties who took part in the contract from having to perform the actions outlined by the document. In the case of an antenuptial contract, that means that divorce hearings, etc. would proceed as if the contract had never existed, if the agreement was deemed by the court to be unenforceable. Let’s do a little lesson on contract law: Generally speaking, there is a small difference between void and voidable contract that is worth noting. A void contract is one that is not able to be executed by design, in other words, there was something problematic about the way that it was written from the start that has made it unenforceable. Void contracts can occur in a handful of different ways, particularly if one party is unable to fully comprehend the meaning of the contract (this goes for all contracts by the way – not just antenuptial contracts). In most cases, a contract entered into with a minor would be a void contract, as well as with an inebriated person. Basically, both parties signing need to be able to fully comprehend the ramifications and implications of a contract for it to be valid. Any contract that agrees upon the performance of an illegal act would also be considered void, as an agreement proposing an illegal act would not be able to hold up in court – for seemingly obvious reasons.
Additionally, a voidable contract is one that may have once been actionable, but the situation around the contract has since made the agreement questionable in nature, and no longer able to be actionable. A contract may be voidable if one party withheld information at the time of the contract drafting, or if they intentionally gave the other party incorrect information. If one party can successfully prove in court that this occurred, the contract that was once valid can become successfully voidable.
So how does this relate to a prenup?
So, if you’re worried about accidentally voiding your antenuptial contract, you may be wondering when or if you should get your prenup “registered” with some authority to ensure its enforceability. Well, prenups don’t get “registered” anywhere at all! That’s right, you actually can have a valid antenuptial agreement without ever having to worry about filing it with some state authority first. Because an antenuptial agreement is a private contract, it does not get registered or filed until it is disputed. In fact, the only circumstance in which an antenuptial contract would ever be registered or filed is if it were to be disputed in a divorce hearing, and required by the court to determine enforceability. In the case of a dispute in a divorce, the antenuptial contract would have to be filed with a court, and then would likely be used as an exhibit in a divorce trial. So, back to our original point: most contracts will never have to be registered, unless of course they are litigated down the road. So, instead of worrying about when, where, and why you should register your prenup, we instead encourage you to focus on the various ways that you can make your prenup best tailored to your own personal financial circumstances.
What Can An Antenupital Contract Do For My Circumstances?
Now that you are aware it is not necessary to register or file with the court an antenuptial contract (unless it is contested in a divorce trial), you may be interested to hear some of the things which an antenuptial contract can or cannot cover with regard to your finances. To fully understand that though, it’s essential to get a sense of how a divorce proceeding without an antenuptial contract in place may proceed in the U.S. Because various states practice various divorce laws (either equitable distribution or community property), divorce proceedings could vary dependent on the state you are undergoing a divorce/residing in. In states that practice equitable division, assets are divided equitably, but not necessarily equally. An equitable division strategy takes many factors of the marriage into account when distributing assets, and many of these factors are state specific. On the other hand, just nine of the fifty states employ community property during divorce hearings. Community property operates under the assumption that a 50/50 split occurs when it comes to divvying up the community assets of a marriage.
So, what can you include in an antenuptial agreement?
It’s important to know what you can include in an antenuptial contract- and there is a lot! Keep in mind that a prenuptial agreement cannot legislate anything regarding childcare, custody or child support. Rather, prenups may cover issues like inheritance, debt, division of marital assets, and so much more. Without an antenuptial agreement, if you do end up undergoing a divorce, there is a chance that you could wind up having to pay for debt that is not your responsibility, or have to pay spousal maintenance. Alternatively, your ex-spouse could be granted the rights to part of your recently acquired inheritance or financial gift, or even your retirement fund. Needless to say, divorces are emotional enough as is. So, if you are able to mitigate some of the additional financial issues that a divorce may bring about with a prenup- why wouldn’t you do so?
While the actual process of securing an antenupital contract may seem overwhelming, there is a new, helpful antenuptial contract solution on the block to help streamline this process at an unprecedented price. HelloPrenup’s one-of-a-kind online platform is the first to allow individuals to create an antenuptial contract completely online, which allows download for later advice of legal counsel if desired. HelloPrenup features an intuitive user interface and detailed questions, allowing users to “opt-in” using important clauses that address things like dealing with debt, pre-marital property, martial property, inheritance, spousal support and more. Instead of coughing up time and money for lengthy prenup negotiations with litigious attorneys, the Issue Identifier step takes the place of lengthy and costly negotiations by citing areas of the antenuptial contract in which you and your future spouse may differ. The platform also designs a plan to help walk you through these differences, and walk away with a prenuptial agreement. While the usual prenup process can charge thousands of dollars per individual, HelloPrenup charges a base price of $599 per couple. For more information on how the process works in full, we encourage you to delve into the HelloPrenup website, specifically the “About Us” and “FAQ” pages, to learn more.
Julia Rodgers is HelloPrenup’s CEO and Co-Founder. She is a Massachusetts family law attorney and true believer in the value of prenuptial agreements. HelloPrenup was created with the goal of automating the prenup process, making it more collaborative, time efficient and cost effective. Julia believes that a healthy marriage is one in which couples can openly communicate about finances and life goals. You can read more about us here Questions? Reach out to Julia directly at [email protected].