Requirements for a Prenuptial Agreement
The requirements for a prenuptial agreement are similar to a standard contract, with some exceptions, such as:
- The prenuptial agreement, and any amendments, must be written, not oral.
- No consideration (or quid pro quo) is required, which means one party may give up important statutory rights in exchange for nothing more than the right to marry the other party.
- Each party must make fair and reasonable disclosure of his/her property and financial assets and obligations.
- Each party must voluntarily enter into the prenuptial agreement (required for all contracts, but beware of a prenuptial agreement presented to the prospective spouse on the eve of a marriage).
- If the prenuptial agreement addresses spousal maintenance (alimony), it must not be unconscionable at the time of enforcement. That’s the legal way of saying that a court may not enforce a maintenance provision which is unfair at the time of divorce or legal separation, even if it was fair when the prenuptial agreement was signed.
A prenuptial agreement may address issues such as:
- Division of property and debt.
- Clarifying which assets will be community and which will be separate.
- Rights and obligations under insurance policies, wills, employee benefit plans, retirement plans, etc.
- Spousal alimony / maintenance.
A post-nuptial agreement in Idaho is identical to a prenuptial agreement in terms of what it may address. The difference is that the spouses are already married at the time the post-nuptial agreement is signed.
What differentiates this agreement from a separation agreement made while the parties are divorcing is that with a post-nuptial agreement the spouses have not filed for dissolution, nor is the agreement being signed in anticipation of a divorce. Instead, the purpose of a post-nuptial agreement is to preserve the marriage, albeit on new terms, not to dissolve it.
If the parties are preparing for a divorce, they should have a separation agreement, prepared in anticipation of divorce. A post-nuptial agreement which was prepared as part of the divorce process, rather than to preserve the marriage, may not be enforceable if a separation agreement should have been used instead.