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Wolfe & Houlehan PLLC
226 North Upper Street
Lexington, KY 40507
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Our attorneys may represent all Kentucky residents regarding family law issues. Our office is located in downtown Lexington, Fayette County, Kentucky but in many cases our communications with clients may occur through this website, by email, or by phone. We generally make court appearances only in Fayette and nearby counties, but court appearances are not required in every case.
Contact us regarding this legal issue using our secure online form. Our attorneys will review your info and get back to you. Flat fees may be available depending on the legal service requested.
Premarital Agreement (Prenup)
A premarital agreement (often referred to as a “prenup” or also a prenuptial agreement or an antenuptial agreement) is a document drafted before two parties are married which decides how property and assets are distributed should the marriage end in divorce or legal separation, or following the death of one of the parties.
For many years, Kentucky courts would not enforce prenups. It was thought that an agreement which contemplated each party’s rights following divorce “was destabilizing to the marital relationship and might promote or encourage marital breakup.” See Edwardson v. Edwardson, 798 S.W.2d 941 (Ky. 1990). However, two 1990 Kentucky Supreme Court decisions changed this: Edwardson and Gentry v. Gentry, 798 S.W.2d 928 (Ky. 1990). It is now generally believed that a prenup can settle maintenance and property division issues more easily than via divorce litigation.
Just as auto insurance protects you in the event of a car accident, a prenup protects both parties if the marriage unfortunately ends. It does not imply that either party expects a divorce; it merely ensures key issues will be decided in advance should that ultimately occur.
Prenups are often utilized in the following circumstances:
- One party has substantial assets while the other does not (example: an older man marrying a younger woman). The rationale for a prenup here is that the later spouse did not contribute to the acquisition of these assets.
- Each party has separate sources of wealth/business interests which they would like to remain separate and apart, rather than commingled through marriage. Even if property is separate when brought into the marriage, the increase in the value of the property that occurred during the marriage becomes marital property subject to equitable (approximately even) division at divorce. A prenup can carve out specific assets from being subject to such a division.
- One or both parties have prior-born children and wish to preserve assets for them. Because assets gained or which increase in value during the marriage become subject to division between the spouses upon divorce, the marriage may complicate or prevent a spouse from passing select assets to children or other relatives later on. A prenup can prevent a later in life marriage from altering a plan of inheritance.
- One or both parties may be marrying for the second or later time and may be reasonably skeptical about the permanency of marriage. Statistically, divorce rates in later marriages are higher than in first marriage. That fact, along with the parties’ experiences, may establish a prenup as a logical planning device should divorce occur.
- One or both parties realizes that the prenup will reduce the time and expense of later divorce litigation if divorce does occur. Without a prenup, the terms of the divorce will be determined by default statutory rules, judicial rulings in prior cases, and the like.
Frequently Asked Questions
- The idea of a prenup seems so wrong. A marriage should be about more than financial considerations following a divorce. Why are they allowed?
At their heart, prenups are merely contracts that apply in the event of a breach (e.g., a divorce). They define what will occur if circumstances do not go as planned. Marriages have long been considered “contractual relationships” where spouses are bound by mutual promises. It makes sense that actual, written contracts would be allowed in this area of law.
Prenups are not for everyone, and of course many/most couples do not have one. Some types of couples who may benefit from prenups are listed in the “Purpose/Necessity” section above.
The fact is that statistically, a high proportion of marriages end in divorce. No one should expect that this will be their fate, but in some cases a prenup is a smart contingency plan should the future not turn out as planned.
The Kentucky Revised Statutes do not currently contain a provision directly regarding prenups, but they have been held to be valid by Kentucky courts since 1990. The statute pertaining to property division at divorce, KRS 403.190, acknowledges that the default rules determining what is marital property may be overcome “by valid agreement of the parties.” Furthermore, prenups tend to help “[p]romote the amicable settlement of disputes that have arisen between parties to a marriage.” KRS 403.110(2).
- I’ve heard celebrities have had prenups with strange conditions, on napkins and things like that? Can I just do an informal one on my own, or must it be drafted by an attorney?
A prenup is worthless if it won’t be upheld by the other party and/or enforced by a court. Should divorce occur, the other party might ignore a prenup drafted haphazardly, or without the assistance of a lawyer.
Through a variety of legal opinions, Kentucky courts have demonstrated what they require of a prenup for it to be enforced. As an example, courts require full disclosure by both parties: free of any material omission, misrepresentation, fraud, duress, and/or mistake. Edwardson v. Edwardson, 798 S.W.2d 941 (Ky. 1990). Attorneys are familiar with these and other legal requirements and can make it far more likely that a prenup is later enforced, and also cut down on litigation should it be challenged. An experienced attorney can be sure the agreement is unambiguous and that all formalities are complied with.
- If there is a prenup, do the Kentucky family law statutes still apply?
Kentucky courts have acknowledged that parties may contact around/out of the default provisions in the Kentucky statutes regarding maintenance and property division. Where there is a conflict between the statute and the terms of the prenup, the prenup will govern if otherwise enforceable.
Aside from maintenance and property division issues, a prenup can define other financial considerations, such as the payment of medical insurance or attorney’s fees in a divorce action. However, a prenup can never determine questions of child support, child custody, and child visitation/timesharing. Edwardson v. Edwardson, 798 S.W.2d 941, 946 (Ky. 1990). These issues continue to be governed by statute.
- Does a prenup need to be recorded?
No, but it may be recorded as an agreement in consideration of marriage under KRS 382.080. The purpose of recording is:
1. To keep a copy of the document within the official records so that it may be easily accessed if the parties later divorce
2. To provide third parties with some level of legal notice as to some of the property ownership and division issues settled by the document.
If you use our firm to draft your prenup, we will keep an official copy in our records and will also record the document in the appropriate County Clerk’s office if desired by the parties.
- Does the prenup need to be in writing?
Yes. According to the Statute of Frauds, an agreement made in consideration of marriage must be in a signed writing. KRS 371.010.
- Can a prenup be revoked after it is created?
Yes. Like any other written contract, a prenup may be revoked if both parties abandon and/or destroy the written document, or jointly execute a written revocation.
Legal Services Offered and Cost
Legal fees: $400 flat fee for drafting agreement and up to one hour of discussion time with an attorney in person, on the phone, or through the internet
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