In the United States, prenuptial agreements are recognized in all fifty states and the District of Columbia. Likewise, in most jurisdictions, five elements are required for a valid prenuptial agreement:
agreement must be in writing (oral prenups are always prohibited);
must be executed voluntarily;
full and/or fair disclosure at the time of execution;
the agreement cannot be unconscionable;
it must be executed by both parties (not their attorneys) "in the manner required for a deed to be recorded", known as an acknowledgment (law), before a notary public.
Prenuptial agreements in all U.S. states are not allowed to regulate issues relating to the children of the marriage, in particular, custody and access issues.[citation needed] The reason behind this is that matters involving children must be decided in the children's best interests.[citation needed] However, this is controversial: some people believe that as custody battles are the worst part of a divorce, couples should be able to settle this in advance.[3]
With respect to financial issues ancillary to divorce, prenuptial agreements are routinely upheld and enforced by courts in virtually all states. There are circumstances in which courts have refused to enforce certain portions/provisions of such agreements. For example, in an April, 2007 decision by the Appellate Division in New Jersey, the court refused to enforce a provision of a prenuptial agreement relating to the wife's waiver of her interest in the husband's savings plan. The New Jersey court held that when the parties executed their prenuptial agreement, it was not foreseeable that the husband would later increase his contributions toward the savings plan.
In California, there is one case that recognized an oral, executed prenup (Hall v. Hall) in the probate of an estate. Parties can waive disclosure beyond that which is provided, and there is no requirement of notarization, but it is good practice. There are special requirements if parties sign the agreement without attorney, and the parties must have independent counsel if they limit spousal support (also known as alimony or spousal maintenance in other states). Parties must wait seven days after the premarital agreement is first presented for review before they sign it, but there is no requirement that this be done a certain number of days prior to the marriage. Prenups often take months to negotiate so they should not be left until the last minute (as people often do). If the prenup calls for the payment of a lump sum at the time of divorce, it may be deemed to promote divorce. This concept has come under attack recently and a lawyer should be consulted to make sure the prenup does not violate this provision.
In California, an agreement is very powerful. A couple can waive their rights to share property (community property). It can limit spousal support (although a court at the divorce can set this aside if it deems that the limitation is unconscionable). The agreement can act as a contract to make a will requiring one spouse to provide for the other at death. It can also limit probate rights at death, such as the right to a probate allowance, a probate allowance, the right to act an executor, the right to take as a predetermined heir, and so forth.[citation needed]
In California, Registered Domestic Partners may also enter into a prenup. Prenups for Domestic Partners can have added complexities because the Domestic Partner does not have the benefit of federal tax law that favors married couples.
In California, courts have not allowed penalties in prenups that sanction people for infidelity or using recreational drugs. Court will not enforce requirements that one person will do the dishes or that the children will be raised in a certain religion.
