A marriage contract, if duly drafted and signed, is legally binding. To have a properly crafted and executed agreement, you have to follow four simple rules: there are many, but « one of the main reasons to sign a prenup is to deviate from what the law would provide in the event of a divorce, » says Elysa Greenblatt, a divorce lawyer in NYC. People often want to protect their wealth from distribution, and a prenup is the obvious answer. There are other reasons that do not come to mind as quickly as when a party has a child from a previous marriage – it may be important to have a prenup so that the parent can support that child with a marital income. Another reason is that divorce laws vary from state to state. If you live somewhere where there are fair distribution laws, but you can move to a state of community property, it is important to protect your assets and determine how they are distributed. Unlike all other contract laws, no consideration is necessary, although a minority of courts denounce marriage itself in return. Through a prenup, a spouse can completely waive property rights, support or inheritance, as well as the voting share, and can get nothing for it. The choice of legal provisions is crucial in the prenups. Contracting parties may decide that the law of the state in which they are married governs both the interpretation of the agreement and the division of property at the time of divorce.
In the absence of a legal choice clause, it is the law of the place where the parties divorce, not the law of the state in which they were married, that decides matters of ownership and support. In drafting an agreement, it is important to recognize that there are two kinds of state laws that govern divorce – a fair distribution, practiced by 41 states, and co-ownership, which is practiced in some variants of 9 states. An agreement written in a state of Community property cannot be intended to govern what happens in a fair distribution state and vice versa. It may be necessary to retain lawyers in both states to cover the eventual case where the parties may be living in a state other than the one in which they were married. Often, people have more than one house in different states or they move a lot because of their work, so it is important to take this into account when developing.