What Can Be Included in a Premarital Agreement in Iowa?
Premarital agreements, also called prenuptial agreements, help add a certain level of security in a marriage. A properly written premarital agreement can decide several issues in the event of divorce, which will save time, money, and hassle in case the marriage ends. This can help add security to the marriage and may strengthen the marriage relationship. This article will briefly discuss:
- What can be included in the premarital agreement?
- When is a premarital agreement non-enforceable?
- What cannot be in a premarital agreement?
What can be included in the premarital agreement?
A premarital agreement must be in writing and signed by both prospective spouses. It becomes effective when the parties are married.
After a divorce, the court will look to equitably distribute all the property of the parties. That means, if the court thinks it is fair, that property acquired by a spouse prior to the marriage could be awarded to the other. However, if a premarital agreement is in place, the court will be more likely to award the property in accordance with the agreement.
Premarital agreements generally discuss issues relating to property. For instance, the parties can determine who will receive property which they bring into the marriage, or property they know they will acquire in the future. They can decide who will have the right to buy, sell, use, or otherwise control the property. They can decide how the property will be distributed upon a divorce, and who will receive the benefit from a life insurance policy. Spouses may make wills, trusts, or other arrangements to carry out the agreement.
Broadly, couples can agree to anything that is not contrary to public policy, including provisions that may benefit children of a previous marriage.
When is a premarital agreement non enforceable?
A premarital agreement is non-enforceable when a person did not enter into the agreement voluntarily, the agreement was unconscionable (seriously unfair) when executed, or one party was not provided a fair and reasonable list of the other spouse’s property (with the other spouse having no reason to know about the property). If only part of the premarital agreement is unenforceable, that part will be taken out of the premarital agreement.
For an agreement to be held unconscionable, the agreement must be so harsh and one-sided towards one party that it would “shock the conscience” to enforce it. The parties have a freedom to contract, so the court will not hold a contract unenforceable simply because the premarital agreement favors one party over the other. Unconscionability sometimes refers to someone using “fine print” or very confusing language, with that person having significantly more power over the other. The court will also consider whether both parties had the opportunity to have a lawyer look the agreement over, how good the parties are at financial and legal matters, the time the party challenging enforcement had to review it prior to the marriage, and the use of technical language in the agreement.
For instance, the Iowa court of appeals held an agreement unconscionable when the agreement was given to the wife at the rehearsal dinner, without providing her enough time to have an attorney look it over.
If the signature was acquired through fraud, or deceptive practices, the agreement may also be unconscionable, or if there was significant property one spouse concealed from the other.
What cannot be in a premarital agreement?
Provisions limiting spousal support and child support cannot be in a premarital agreement. If a premarital agreement says one party waives the right to collect spousal or child support, it will not be enforced. Likewise, premarital agreements waiving an award of attorney fees related to child and spousal support issues are also prohibited. The same is true for child custody. This is a matter to be decided by the court based on the child’s best interests.
Courts are also not likely to enforce part of a premarital agreement that seeks to govern marital conduct. For instance, in one case where the couple agreed that one spouse would take less property if he ever cheated on the wife, the court refused to enforce the premarital agreement. They did this because courts do not want to include “marital fault” as part of the divorce process, and normally do not consider past infidelities as part of the divorce case. Likewise, other matters which do not have to do with property and finances may also be invalid, though there is little caselaw on the issue.
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