WHAT IS A PRENUPTIAL AGREEMENT? DO I NEED ONE?
AN ANTENUPTIAL OR PRENUPTIAL AGREEMENT is a contract made between two people prior to marriage to address in advance issues that may arise after marriage in the event of their divorce or the death of one of the spouses. The antenuptial agreement may address how matters such as the separate property of the parties, jointly acquired property of the parties, inheritance or either party, or support alimony, and other issues, will be handled in the event of a divorce. Prenuptial agreements fall withing the scope of the Statute of Frauds, and therefore must be in writing and signed by both parties.
Okla. Stat. tit. 43, §121, makes the division of marital property subservient to a valid antenuptial agreement, even if it waives a right to equitable distribution of marital property. Griffin v. Griffin, 2004 OK CIV APP 58, ¶ 11, 94 P.3d 96, 99, 2004 WL 1506158. Antenuptial agreements may similarly be used to waive alimony, Griffin v. Griffin, Id.; to waive a spouses right to elect a forced share in probate, Barr v. Dawson, 2007 OK CIV APP 38, ¶ 11, 158 P.3d 1073, 1076, 2006 WL 4513792; to waive the right to attorney fees in a divorce case, Griffin v. Griffin, Id., to waive the homestead rights of a surviving spouse, Matter of Est. of Meyers, 1985 OK 87, 709 P.2d 1044, 1048, 54 USLW 2315; and to waive the right to a spousal allowance during the pendency of probate, so long as minor children are not involved, Matter of Est. of Meyers, 1985 OK 87, 709 P.2d 1044, 1048, 54 USLW 2315
Although an antenuptial agreement has been defined as a contract between a man and a woman expected prior to marriage, there is nothing in the Oklahoma statutes so limiting their use, and any such limitation after Obergefell v Hodges, 576 U.S. 644 (2015) would presumably be held unconstitutional. Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014), cert. denied, 135 S. Ct. 271, 190 L. Ed. 2d 139 (2014).
In general, a prenuptial agreement is a contract like any other, which must be supported by consideration, and can be avoided by a showing of fraud, duress, coercion, overreaching, and the like. Matter of Burgess’ Est., 1982 OK CIV APP 22, 646 P.2d 623, 626, as corrected (Mar. 30, 2004). As a general rule, the marriage is sufficient consideration to support the agreement. Burgess, Id. The Burgess case, although only a Civil Court of Appeals case, laid down the generally accepted principles for testing the validity of a prenuptial agreement.
Certain tests, peculiar to antenuptial agreements, have been cited in considering their validity. As summarized in an excellent recent law review note, Stamets, “Husband and Wife: Drafting an Antenuptial Contract in Oklahoma,” 32 Okl.L.Rev. 220, 228 (1979)-these issues are:
- Is fair and reasonable provision made for the (party opposing the contract)?
- If not, was a full, fair, and frank disclosure of the (other spouse’s) worth made before execution of the contract?
- If neither of the above, did the (party challenging the contract) in fact have a generally accurate knowledge of (the other’s) worth?
The Burgess case goes on to explain that these three tests are in the disjunctive – connected by the word ‘or” not “and.” Only one of the criteria must be met for the agreement to be enforceable.
The most important point to remember concerning the process and procedure of a prenuptial agreement is it must be executed before the marriage. A “post nuptial” agreement is not entitled to the deference a prenuptial agreement is. The second most important thing is the agreement must satisfy at least one of the Burgess criteria for validity. The second criterion is the easiest to prove if the full and complete disclosure of assets and liabilities is actually attached to the agreement in the form of exhibits stating the financial details for each party. Finally, to eliminate the possibility of equitable defenses to the agreement, the attorney drafting the document should insist the other party have legal advice before signing. It should be executed in advance of, not at the time of, the marriage ceremony to eliminate claims there was no fair opportunity to review it. Consideration should even be given to video recording the signing to eliminate claims of duress, coercion, overreaching, and the like.