A marital agreement is a legal contract between two people who are married or planning to get married. It sets rules for how they will handle money, property, and responsibilities during the marriage or after a possible separation.
There are three main types of marital agreements:
- Prenuptial agreement: Signed before the marriage.
- Postnuptial agreement: Signed after the couple is already married.
- Separation agreement: Signed when a couple plans to live apart or get divorced.
Each agreement has a different purpose, but they all help couples avoid confusion or arguments by making things clear in writing. Marital agreements can protect each person’s property, decide how to divide debts, and explain how support or inheritance will work.
Marital agreements are only valid if they follow the law and are signed willingly by both people. These agreements must be fair, written clearly, and often need to be notarized.
Key Takeaways
- Marital agreements are legal contracts that outline financial and property terms between spouses or future spouses.
- Three types exist: prenuptial (before marriage), postnuptial (during marriage), and separation (when planning to live apart).
- Couples can include terms about property division, debt responsibility, spousal support, and inheritance rights.
- Child custody and child support cannot be decided in a marital agreement—only the court can decide those.
- To be valid, the agreement must be voluntary, in writing, fair, signed, and include full financial disclosure.
- Independent legal advice for both parties is strongly recommended to ensure fairness and enforceability.
- A well-drafted marital agreement helps prevent conflicts and provides financial clarity for both partners.
Types of Marital Agreements
There are three main types of marital agreements: prenuptial, postnuptial, and separation agreements. Each type is used at a different point in the relationship and serves a specific purpose.
1. Prenuptial Agreement (Prenup)
A prenuptial agreement is signed before marriage. It explains how money, property, and debts will be handled during the marriage or if the couple separates. A prenup can protect personal assets, family businesses, or future inheritance. It helps avoid arguments and protects both people’s rights.
2. Postnuptial Agreement (Postnup)
A postnuptial agreement is signed after the couple is already married. It works like a prenup but is created during the marriage. Some couples use a postnup when their finances change, such as getting a new job, starting a business, or receiving an inheritance. It can also help if there have been problems in the marriage, like financial disagreements.
3. Separation Agreement
A separation agreement is used when a couple chooses to live apart or divorce. It covers the same topics—like property, debts, and support—but it also includes plans for living separately. This agreement can help avoid court battles by making the couple’s choices clear in writing.
Each type of agreement must follow state laws to be enforceable. They must be fair, made voluntarily, and usually written and signed with legal advice.
What Can Be Included in a Marital Agreement?
A marital agreement allows couples to decide in advance how certain financial and legal matters will be handled during the marriage or in case of separation. These agreements give both partners a chance to protect their interests and avoid future disputes by making clear and specific choices.
One of the most common things included in a marital agreement is how property will be divided. Couples can decide which assets are considered joint property and which ones remain separate. For example, someone may want to keep ownership of a house they bought before the marriage or protect a family-owned business. The agreement can also explain how any property bought during the marriage will be shared or divided.
Marital agreements often include rules about debt. The couple can decide who will be responsible for specific loans or credit cards. This helps protect one spouse from being forced to pay for the other’s debts, especially if those debts existed before the marriage.
Spousal support, also known as alimony, is another topic that can be included. The agreement can state whether either spouse will receive support if the marriage ends, and how much that support will be. However, the court may still review these terms to make sure they are fair.
Some couples include details about inheritance. A marital agreement can protect a spouse’s right to inherit certain property or waive those rights if both agree. This is useful in second marriages, especially when children from earlier relationships are involved.
While many things can be included in a marital agreement, certain topics—like child custody and child support—cannot be decided in advance. These matters must be handled by the court at the time of separation or divorce to ensure the child’s best interests.
Why Do People Use Marital Agreements?
People use marital agreements to protect their finances, avoid future conflict, and bring clarity to their relationship. These agreements give couples control over important decisions, instead of leaving those decisions to the court during a separation or divorce.
One common reason is asset protection. A person entering the marriage with valuable property—such as a home, savings, or a business—may want to keep those assets separate. A marital agreement makes it clear which property stays with each person if the relationship ends.
Marital agreements are also useful for couples with unequal income or debts. If one person has large student loans or credit card debt, the agreement can prevent the other from being held responsible. In the same way, someone who expects a future inheritance or large income may want to outline how that money will be handled.
Business owners often use these agreements to protect their company. Without a clear agreement, a business could be divided or affected during a divorce. A marital contract can keep ownership separate and avoid problems that might harm the company.
Marital agreements also help in second marriages, especially when there are children from previous relationships. The agreement can explain what each spouse’s children will inherit and prevent confusion over what belongs to whom.
In short, people use marital agreements to reduce legal risks, plan for the future, and strengthen trust by making expectations clear.
Legal Requirements for Enforceability
For a marital agreement to be legally enforceable, it must follow specific rules. If these rules aren’t met, a court may refuse to follow the agreement, especially during a divorce or legal dispute.
First, both people must sign the agreement voluntarily. This means there can’t be any pressure, threats, or unfair influence. If one person was forced or rushed into signing, the agreement can be challenged in court.
Second, the agreement must involve full financial disclosure. Each person needs to honestly share details about their income, property, debts, and other financial information. Hiding money or important assets can make the agreement invalid.
Third, the agreement must be in writing. Verbal agreements are not accepted in court. Both parties must sign the written document, and in many states, the signatures must also be notarized to prove they are real and made willingly.
Fourth, the terms of the agreement must be fair and reasonable. If a judge sees that one person would suffer extreme unfairness or financial harm from the terms, they may refuse to enforce it. This is especially true if the agreement favors one side too heavily or is clearly one-sided.
Finally, it is strongly recommended that each person has their own lawyer during the process. Separate legal advice helps ensure both parties understand the contract and are making informed decisions. It also adds to the agreement’s strength in court.
What Cannot Be Included in a Marital Agreement?
While marital agreements can cover many financial and property issues, there are clear limits to what the law allows. Certain topics cannot be decided in advance, especially if they affect the rights of others—such as children.
Most importantly, child custody and child support cannot be settled in a marital agreement. These decisions must be made by the court at the time of separation or divorce, based on what is best for the child. Even if parents try to agree in writing, a judge can ignore those terms.
Another limit is that a marital agreement cannot encourage divorce. For example, including a reward or benefit that one person gets only if they divorce could make the agreement invalid. Courts look closely at any terms that seem unfair or that may lead to the end of a marriage.
Also, the agreement cannot include illegal or harmful conditions. Any clause that violates state or federal law, or that tries to control a person’s daily behavior in extreme ways, will not be accepted by the court.
Lastly, the agreement cannot be unconscionable, which means extremely unfair. If one person ends up with almost everything and the other is left with nothing, a judge may decide that the agreement goes against fairness and refuse to enforce it.
Do You Need a Lawyer to Create a Marital Agreement?
Hiring a lawyer is not required by law in every case, but it is highly recommended when creating a marital agreement. Legal help makes the agreement stronger, clearer, and more likely to be enforced by a court.
Each person should have their own lawyer. Independent legal advice helps both sides understand what they are signing. It also proves that no one was pressured or misled. If only one person has a lawyer, the agreement could later be challenged for being unfair or one-sided.
A lawyer also helps ensure the agreement follows state laws. Marital contract rules can vary from one state to another. An attorney knows what terms are allowed, which ones are not, and how to word each part properly to avoid confusion.
Using online templates or writing your own agreement without legal advice can be risky. Important steps might be skipped, like full financial disclosure or notarization. These mistakes can make the contract invalid later, even if both people agreed to it at the time.
Getting legal help not only protects your rights, but it also adds credibility to the agreement. Judges are more likely to enforce a contract that was carefully written and reviewed by lawyers.