Let's Imagine a Ban on Prenuptial Agreements
A look at how prenuptial agreements are being interpreted and enforced by the courts in an effort to see why divorce lawyers often see these agreements as "uniquely complex legal instruments that are fraught with the potential for peril."
March 05, 2024 at 10:00 AM
7 minute read
Let us begin this writing/reading experience by clearing the air right from the start: the answer is "no"—this author does not believe that prenuptial agreements should be banned. We live in a free country, with free will, and the freedom to enter into contracts is a staple of American jurisprudence.
We tell our clients, rightfully so, that prenuptial agreements are intended to provide certainty to a point where the soon to be newlyweds can rest assured that issues of equitable distribution, spousal support, and rights on death will be safely walled off from the prospect of litigation, or, at least the scope of potential disputes will be limited if judicial intervention becomes necessary.
But if that is the case, then it begs the question why we keep seeing prenuptial agreements at the center of, yes, divorce litigation. There also appears to be a growing sentiment, at least in the podcast ecosystem, that prenuptial agreements may not be worth the paper they are written on.
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