How do prenuptial agreements in Missouri (sometimes called “prenups”) work? What should I consider before signing a prenup? How do I get a prenup in place? Anyone considering a premarital agreement will have a variety of questions when confronting this unique topic.
What is a Prenuptial Agreement?
A prenuptial agreement is a contract signed prior to marriage that details the terms of a potential future divorce or legal separation. The contract can also touch on other areas of law, such as how estate planning issues will be addressed with your future spouse or the terms of dealing with real estate during your marriage. The prenup is an out of Court document that is not filed with the Court unless the parties challenge the document down the road.
Is a Prenuptial Agreement Enforceable in Missouri?
Yes, prenuptial agreements are typically enforceable in the State of Missouri if entered into by two consenting parties and if the proper procedure is followed. When considering whether a premarital agreement is enforceable, the Court will look at a couple of key factors, including when the contract was signed, whether the parties both had legal counsel, and whether the parties both fully disclosed their assets and the value of those assets.
- Timing – The Court will always look at when a prenup was signed to determine if it is valid and enforceable. If one party springs a prenup on the other party hours before the wedding, then there is a good chance that one or both the parties were under duress when signing and the contract may be found invalid. While most parties who have competent counsel can probably sign a prenup up to a few days before the wedding, a good rule of thumb is to have the contract signed at least a month before the wedding date.
- Representation – Premarital contracts can be very technical with quite a bit of legal language in them. The Judge will likely want to know if both parties were represented by their own attorney when signing the agreement. If one party signed it without knowledgeable counsel advising them, then this may create an issue
- Full Disclosure – At its core, a prenup is a contract to protect property and to preserve or waive certain financial or marital rights. If one or both parties do not disclose fully disclose their premarital assets and debts, then it is impossible for the other party to enter into the contract with full knowledge. Most properly prepared agreements even include a schedule of assets and debts for each party attached to the end.
What is the State Law in Missouri for Premarital Agreements?
Different laws are combined when considering a prenup. The general prenup tries to comply with a handful of different statutes and case law including RSMo 474.120, 474.220, and 451.230. There are also the general dissolution statutes under chapter 452 that must be considered.
Do Prenups Hold Up in Court?
When parties enter into a prenup, there is a good probability that the parties will never find out whether the contract will hold up if challenged. However, if one party feels that the original agreement was flawed, then they can file a Motion to Set Aside the prenuptial agreement once a divorce or legal separation case is filed with the Court in St. Louis County or St. Louis City.
Once a Motion to challenge the prenup, then the Judge will start considering the many facets of the contract to determine if it should be enforced. Most prenups, if properly executed, will hold up in Court.
How Do I Get a Prenup?
In order to have a premarital agreement drafted, you must contact a family law attorney to start the process. Typically attorneys that practice family law and estate planning are the lawyers in town the handle prenups. You could also technically find forms online or use an online service to draft your own prenup, but as mentioned, this may leave you vulnerable to having the prenup set aside down the road.
How Long Are Prenups Good for or Do they Expire?
A well written prenuptial agreement should not expire unless intended to do so. Most contracts of this nature only end upon termination of the marriage or death of one of the parties. Even then, the agreement may even dictate how funds or property is distributed after the death of one of the parties.
That being said, some prenups have what is called a “sunset clause”. This means that the agreement will expire after a certain period of time, such as 15 years after the date of marriage. These types of clauses protect against short-lived marriages, but reward couples for staying together.
What Can be Included in Prenuptial Agreements in Missouri?
As these are out of Court contracts, the parties can include any terms that they would like to. That does not mean every term will necessarily be enforceable, but anything can be included. Most premarital agreements have a “severability clause” that asks for the entire agreement to be enforced even if one provision is deemed to be unenforceable.
Common items in a prenup include waiving interest in the other party’s premarital assets, waiving future maintenance or alimony, detailing how to handle pre and post marital real estate and future purchases of real estate, and how to handle spousal rights to inheritance.
What Cannot be Included in Prenuptial Agreements in Missouri?
There are some items that cannot be included in a prenup. The main item that cannot be contracted before a marriage is the custody and support of children. These provisions will never be enforceable and including them at all may risk the enforceability of the rest of your agreement.
It is also probably best to stay away from very complex or unique provisions. The more out of the box a term, the more a Judge will not be comfortable enforcing it or considering it at all.
What are the Risks or Disadvantages of Prenuptial Agreements?
These contracts are technically written to waive the presumed marital rights of one or both of the parties prior to entering into a marriage. For example, a spouse who does not work during the marriage because he or she stays home to raise the kids may have a right or claim to spousal support upon a divorce. Many premarital agreements waive spousal support though, which can put one of the parties at a major disadvantage down the road. It is also not uncommon for their to be a power or asset disparity between the two parties entering into the Agreement.
How Much will a Prenup Cost?
The cost depends on whether you are the party having the Agreement drafted or if you are the party hiring an attorney just to review the Agreement. The cost can range from $2,500.00 to upwards of $10,000.00 to have an Agreement drafted, but will be lower if you are just having it reviewed. Our firm typically has a retainer of $2,500.00 for drafting the Agreement.
What Steps are Next?
If after reviewing this information, you still have interest in entering into a premarital agreement, give us a call. We represent parties from all over St. Louis County and St. Louis City who want a prenup drafted and we also represent the opposite side when that party needs a prenup reviewed by an attorney.
