A Kiss Is Just a Kiss, but Contract Is Official

Basically, premarital agreements are contracts. They lay out sets of conditions and specify who will have the right to what if those conditions arise.

In their simplest form, they involve the transfer, or the promise to transfer, certain assets or sums of money from one spouse to the other.

One such option is known as a transfer “upfront,” in which one spouse gives a specific sum to the other. In exchange, the spouse receiving the money gives up his or her claims to support or to rights to the other spouse’s property.

Another option may specify that one spouse has the right to an amount of money and property--the couple’s residence, for example--upon the other’s death or a divorce, but nothing else. Generally prenuptial agreements involve property, but in recent years they have expanded to cover such things as whether there are to be children (and, if so, who will be responsible for their support), division of labor within the household, even extramarital sex.

To be valid, though, the agreements have to meet certain conditions.

If they involve property rights, they should be in writing, and most, but not all, states require:

* Full disclosure. Both parties must disclose all their assets and income. Since the poorer spouse may be giving up rights to the richer spouse’s property, he or she has the right to know exactly how much is being given up. Likewise, if the richer spouse is promising to transfer assets to the poorer spouse, he or she has a right to know just how poverty-stricken his or her intended is.

* Fairness. The agreement has to be fair and reasonable both at the time it was entered into and in the future. These are rather nebulous terms, however, so ultimately a court may be called on to decide an agreement’s validity.

* Voluntary agreement. Prenuptial agreements are not valid if they are coerced. Lawyers take great care to make it clear that the agreement was voluntary, often urging the spouses to retain separate counsel to make sure their rights are protected. At the least, lawyers say, they like to meet with both spouses separately to advise them of their rights.