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What is an antenuptial agreement? - Attorneys – Wiseman Bray PLLC

What is an antenuptial agreement?

What is an antenuptial agreement?An antenuptial agreement is a contract that two people sign to plan for how the individuals will divide up their assets if they divorce someday or if someone dies. In Tennessee, individuals can enter into prenuptial agreements, which are signed before marriage, and they can also enter into postnuptial agreements after marriage under certain circumstances. Tennessee courts interpret and enforce prenuptial and postnuptial agreements in the same way that they interpret and enforce any other contract.

Generally speaking, antenuptial agreements address the division of property, such as land, buildings, retirement, cars, furniture, and bank accounts, as well as payment of alimony. Prenuptial agreements have to be finalized before the couple marries and they become effective as soon as the parties tie the knot. In Tennessee, postnuptial agreements generally address the same issues, however both parties have to give sufficient consideration in order for the agreement to be enforceable.

What is sufficient consideration for an antenuptial agreement?

Consideration exists when a party does something that he or she is under no legal obligation to do or refrains from doing something which he or she has a legal right to do. It may be a benefit to the spouse making the promise or obligation upon the spouse. The general consideration for a prenuptial agreement is the marriage itself. In essence, the agreement to be married to one another is sufficient.

However, the question of adequate consideration is different when couples intend to enter into a postnuptial agreement because the marriage has already occurred. Generally speaking, the act of a reconciliation after separation may be sufficient consideration so that the postnuptial agreement can be enforced like any other contract. Nevertheless, couples should also obligate themselves to divide property in a particular manner or set spousal support in the event of a divorce within their postnuptial agreement to ensure enforceability.

What else is required by Tennessee law for a prenup to be enforceable?

Tennessee Code Annotated Section 36-3-501 is the statute that defines what is necessary for a prenuptial agreement to be valid and enforceable. It states:

Any antenuptial or prenuptial agreement entered into by spouses concerning property owned by either spouse before the marriage that is the subject of such agreement shall be binding upon any court having jurisdiction over such spouses and/or such agreement if such agreement is determined, in the discretion of such court, to have been entered into by such spouses freely, knowledgeably and in good faith and without exertion of duress or undue influence upon either spouse.

In determining if the parties entered into the agreement “freely, knowledgeably and in good faith” the Tennessee Supreme Court has stated that there must be a full disclosure of all assets owned by each party, including the value of each asset, as well as the income earned by each party. This is best accomplished by each person disclosing, in writing, all real estate and personal property in which a person has an interest. Further, although it is not required, each individual having independent advice of an attorney to draft, review and offer advice concerning the prenuptial agreement is one of the best ways to prove that each party fully understood the terms of the agreement.