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 various questions.
This page walks through how to get a prenup in Missouri, what one can and cannot do, what it costs, and when it makes sense to talk to a Missouri prenuptial agreement lawyer. We practice only family law, and we draft and review these agreements for couples across St. Louis County, St. Louis City, St. Charles County, and Jefferson County.
What is a Prenup, or 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.
Who Should Consider a Prenup?
While prenuptial agreements can benefit many couples, certain individuals may find them particularly valuable for protecting assets and establishing clear financial expectations.
A prenuptial agreement is worth strong consideration in a few situations.
- Individuals with children from previous relationships. A prenup can address what you want preserved for your children.
- Business owners. A prenup can address how a business you built before the marriage is treated, and who has a claim to what. Without one, a business you owned going in can still become partly marital through the work you put into it during the marriage, which is where most of these disputes actually start.
- High-asset individuals. A prenup can set out how wealth, investments, or family inheritances you bring into the marriage are handled.
- People marrying later in life. Retirement accounts and investments you built on your own can be addressed before the marriage rather than after.
- Those entering second marriages. Blending families and previously acquired assets raises questions that are easier to settle in advance.
- Same-sex couples. A same sex prenup in Missouri works the same way as any other premarital agreement, and it can also address property either partner brought into the relationship during years when marriage was not available to them.
A prenuptial agreement offers peace of mind by establishing clear financial expectations before marriage, potentially avoiding costly disputes later.
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 fully disclosed their assets and the value of those assets.
- Timing. When the agreement was signed matters. An agreement handed over hours before the wedding invites an argument that one party signed under pressure, and that is one of the grounds raised when an agreement is challenged later. Giving both sides real time to read it, ask questions, and get their own advice takes that argument away. Earlier is better.
- Representation. Premarital contracts can be very technical, with quite a bit of legal language in them. Whether each party had their own attorney is one of the things looked at if the agreement is challenged. An agreement signed by someone who had no counsel advising them is easier to attack on that point.
- 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 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?
When considering a prenup, different laws are combined. The general prenup tries to comply with a handful of different statutes and case law, including RSMo 474.120, which covers when a surviving spouse’s inheritance and statutory rights are treated as waived, RSMo 474.220, which covers waiver of the right to elect, and RSMo 451.230, which covers how marriage contracts are acknowledged and where they are recorded. The general dissolution statutes under chapter 452 must also 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, St. Louis City, St. Charles County, or Jefferson County.
Once a motion like that is filed, the Court reviews the agreement and the circumstances around how it was signed before deciding whether to enforce it. Every case turns on its own facts, so there is no general answer about how a particular agreement will come out. What we can tell you is that the timing, disclosure, and representation points above are where those arguments usually land.
How Do I Get a Prenup in Missouri?
People ask us whether they need a lawyer for a prenup in Missouri. You are not required to have one. The trade-off is that timing, disclosure, and representation are the three things that get argued about later, and an agreement drafted without counsel on either side is harder to defend on all three.
To have a premarital agreement drafted, you must contact a family law attorney to start the process. Typically, attorneys who practice family law and estate planning are the lawyers in town who 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 the termination of the marriage or the 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 said, some prenups have 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. The idea behind a clause like that is that the agreement matters most in the early years of a marriage.
What Can Be Included in Prenuptial Agreements in Missouri?
As these are out-of-court contracts, the parties can include any terms they want. 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 real estate purchases, and addressing spousal rights to inheritance.
What Cannot be Included in Prenuptial Agreements in MO?
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. Those provisions are not enforceable, and including them at all may put the enforceability of the rest of your agreement at risk.
It is also probably best to stay away from very complex or unique provisions. The more unusual a term is, the more room there is to argue about whether it can be enforced 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 there to be a power or asset disparity between the two parties entering into the Agreement.
How Much Does a Prenup Cost in Missouri?
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.
If you are comparing the cost of a prenup in Missouri, ask each lawyer what the number actually covers. Drafting an agreement from scratch, reviewing one the other side has drafted, and negotiating changes to a draft are three different jobs at three different prices. We will tell you which one you are looking at before you commit to anything.
Common Questions About Prenups in Missouri
Do I need a lawyer for a prenup in Missouri?
No, you are not required to hire one. In practice, timing, full disclosure, and whether each party had their own counsel are the three points that come up when an agreement is challenged later, and an agreement drafted without a lawyer on either side is harder to defend on all three. We draft prenups and we also review agreements the other side has drafted.
How do I get a prenup in Missouri?
You start by talking to a family law attorney, and the earlier the better rather than in the last week before the wedding. From there it is a conversation about what each of you is bringing into the marriage, a full list of assets and debts on both sides, a draft, and real time for the other party and their attorney to review it.
How much does a prenup cost in Missouri?
It depends on whether you are the party having the agreement drafted or the party having one reviewed. Drafting from scratch, reviewing someone else’s draft, and negotiating changes are three different jobs at three different prices. Ask any lawyer you talk to what their number covers, and we will do the same for you before you commit to anything.
Is a same sex prenup in Missouri any different?
No. A same sex prenup in Missouri is the same instrument as any other premarital agreement, and the same requirements apply. What sometimes differs is the history, because many couples were together for years before marriage was available to them, and that can make the property brought into the marriage worth working through carefully.
What is the difference between a prenup and a postnup?
Timing. A prenuptial agreement is signed before the marriage and a postnuptial agreement is signed after. They cover a lot of the same ground and the enforceability questions are similar. If you are already married and wish you had done this earlier, a postnup is the version to ask about.
What Steps are Next?
If after reviewing this information, you still have interest in entering into a premarital agreement, give us a call. We draft prenups and we review prenups the other side has drafted, for couples in St. Louis County, St. Louis City, St. Charles County, and Jefferson County. We are here, and we return our calls.