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Are Prenuptial & Postnuptial Agreements (Antenuptial Agreements) Enforceable?

Antenuptial Agreements, also known as prenuptial agreements or postnuptial agreements, are contracts to dispose of property in the event of a divorce (Dissolution of Marriage), or death. For these types of agreements to be enforceable, they must meet a three-part test.

Part 1: Whether the Agreement was Obtained Through Duress, Fraud, Mistake, Misrepresentation, or Nondisclosure of Material Facts?

These agreements are closely scrutinized by the courts and determined on a case-by-case basis. Therefore, the contract must include a full disclosure of the material facts which made the disposition of property fair, reasonable, just, equitable, and adequate in the view of the parties' circumstances both at the time of creation and enforcement.

As with all contracts, antenuptial agreements must be entered into freely, knowingly, and voluntarily. A list of assets or full disclosure is not required, but there must not be any material misrepresentation or omission. The disclosure requirement exists to ensure that before parties should be bound by agreements which affect their substantial rights upon divorce, it should appear that the agreement was free of any material omission or misrepresentation.

This test asks whether the party attempting to modify the agreement had substantial knowledge of the nature and extent of the other party's assets prior to executing the agreement so as to satisfy the disclosure requirements.

Part 2: Is the Antenuptial Agreement Unconscionable?

The individual who believes the antenuptial agreement to be unconscionable has the burden of proving that the agreement is invalid and should be modified. The test of the substantive fairness requires a finding that the circumstances of the parties at the time the marriage is dissolved are not so beyond the contemplation of the parties at the time the contract was entered into as to cause its enforcement to work an injustice.

In other words, one party cannot simply show that one party's position improved but must also show that their position suffered in a manner which was beyond the contemplation of the parties when they entered into their agreement.  

Part 3: Does the Agreement Apply to Anything Aside from Property Disposition and Maintenance?

In short, antenuptial agreements may only apply to property disposition and maintenance and cannot resolve issues of child custody, child support, or parenting time. Therefore, any provisions that determine child custody, child support, or parenting time will be disregarded by the court.

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