A prenuptial agreement (hereinafter referred to as “prenup”) is a legally binding contract that is entered into prior to marriage to protect the marrying parties in the event of a divorce. Prenups are enforceable in Tennessee. A prenuptial agreement typically addresses things like: property division, alimony, and other situations that might arise in the event of a divorce.
According to Tenn. Code Ann. § 36-3-501, a prenup must be entered intofreely, knowledgeably, and in good faith. The key is knowledgeably, this means that all assets must be fully disclosed to both parties prior to executing the prenup. It is also advised that both parties seek independent legal counsel prior to signing the document to ensure that he/she has full knowledge and understanding of what he/she is agreeing to. Prenups typically include provision detailing:
Property - specifically what will become marital property and what will remain separate property should the marriage end in divorce,
Debt - specifically addressing debt and how that will be handled in the event of a divorce,
Inheritance- specifically addressing whether inheritance will become marital property or if it will be kept within the inheriting party’s family of origin,
Expenses - specifically addressing what each person will be financially responsible for during the marriage,
Alimony - specifically addressing whether or not the parties want to waive alimony in the event of a divorce,
Property Rights - specifically addressing property rights in the event of a divorce, and
Children From a Previous Marriage - specifically addressing protections for children from a previous marriage and how they will be protected in the event of divorce.
Prenups and Child Custody
In Tennessee marrying parties are free to include child custody and child support in the prenup. However in Tennessee, typically any provisions regarding child support and/or child custody in a prenup will not be enforceable even if both parties agree based solely on the provision included in the prenup. In Tennessee child custody is awarded based on the best interest of the child(ren). Tennessee family law courts retain the authority to make the determination of custody based on what is in the best interest of the child(ren).
Is a Prenup Final?
No, prenups can be amended after marriage if there is a change in circumstances or if the marrying parties change their minds about a certain provision. Some agreements contain a “sunset provision” stating that the agreement expires after a certain period of time. For example: the parties to a prenup might have a provision stating the prenup is valid for the first 10 years of marriage. If they remain married after being married for 10 years then the prenup is null and void.
The prenup should specifically lay out how to amend the contract should both parties want to make a change. It is best practice to obtain legal representation prior to making any changes to an existing prenup.
Contesting a Prenup
One way to declare a prenup unenforceable is to contest the validity of the agreement. You can contest the validity by examine whether the agreement was entered into freely, knowledgeably and in good faith. If a prenup was entered into through duress, or coercion then the prenup will likely be deemed unenforceable because it was not entered into of your own free will. If one spouse failed to fully disclose or value assets when the prenup was executed then the prenup will likely be deemed unenforceable because it was not entered into knowledgeably. It is also important that the less-propertied spouse received independent legal advice, this also could be a valid reason to challenge the enforcement of a prenup because it also goes to whether the prenup was entered into knowledgeably.
The court will also look to whether the agreement was “fair.” The court will look to when the prenup was executed - was the prenup presented to the less-propertied spouse moments before the wedding? How financially endowed is/was the less-propertied spouse? Were the assets valued? If so by whom and when? Is/Was the prenup one-sided? Will the less-propertied spouse become a “public charge” meaning will the State become financially responsible for the care of the less-propertied spouse?
All of this will be taken into consideration when evaluating whether or not a prenuptial agreement is enforceable.
Do You Need an Attorney?
If you're wanting to execute a prenuptial agreement or contest one you should contact a lawyer. At Cotter Law we will provide compassionate yet aggressive representation. Family law matters can be complex and that is why it is important to have an attorney on your side. Fill out the form below or call Cotter Law today to schedule your FREE consultation at (865) 888-7155 to speak with an attorney.