Before Saying “I Do” – Antenuptial Agreements (“Prenups”) in Kentucky
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What is an Antenuptial Agreement?
An antenuptial agreement (or a prenuptial agreement) is an agreement made between two individuals before getting married, to permit them to individually retain certain assets during the marriage and after the marriage should divorce arise.
Originally, Prenups Were not Allowed in Kentucky
Prenups were not always legal in the Commonwealth. Historically, parties were not permitted to alter the default rules regarding the division of property and maintenance as set by the state. At its core, a marriage is a contract, but the terms of the contract were dictated by the state and parties were not permitted to alter those rules - particularly when the agreement was to take effect upon divorce.
This was the rule in Kentucky until the 1990 Gentry v Gentry (Gentry v. Gentry, 798 S.W.2d 928 (Ky. 1990)) decision. The Court in Gentry held that antenuptial agreements could control property division at the time of divorce. The Court went on in Edwardson v Edwardson, to apply this rule to maintenance. (Edwardson v. Edwardson, 798 S.W.2d 941 (Ky. 1990))
What Issues Can an Antenuptial Agreement Address?
Antenuptial agreements can address many aspects of the financial relationship between married or divorcing parties. However, there are some matters that parties cannot change.
Parties cannot agree to or change the standard rule of law regarding:
- Parties cannot agree to terminate their marriage simply through a private notification process if they have gone through a ceremonial marriage or live in a valid common-law marriage
- An agreement may not prohibit one of the parties from claiming child support in the event of a marriage dissolution
- Courts have also refused to enforce agreements providing that children born of the marriage will be raised in a particular religious faith
Not all antenuptial agreements are equal.
Not all pre-nups will be enforced by the courts.
Rules For Antenuptial Agreements To Be Applied By The Courts
To be enforceable an antenuptial agreement must meet certain fairness safeguards before the courts in Kentucky will apply them.
The requirements are that the agreement:
- Must have been executed freely, knowingly, and voluntarily by each party
- That the agreement not be tainted by fraud, duress, or mistake
- Each party must make full disclosure of his assets at the time the agreement is made
- The agreement must not be unconscionable either at the time it is made or at the time that enforcement is sought
Most of these requirements can be traced back to contract law and they don’t represent “new” protective provisions in the context of making a binding agreement. The only “new” requirement is that the agreement not be unconscionable at the time of signing AND on enforcement. (Contract law only requires that it not be unconscionable at the time of signing)
The Burden of Proof: Prenuptial Agreements
Under Kentucky law, the person asking to enforce the prenuptial agreement has the burden to prove that the agreement is valid to be enforceable, pursuant to Lawson v. Loid, 896 S.W.2d 1 (Ky. 1995), as modified on denial of reh'g, (May 11, 1995).
Frequently Asked Questions About Pre-nups
- Second marriages of older individuals who already have children
- Couples where one party is bringing large amounts of property or assets into the marriage
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