An antenuptial agreement is a pre-marriage contract between the future couple that defines their rights in property and financial responsibilities in the event of divorce. Tennessee courts will recognize and enforce antenuptial agreements (sometimes called “prenuptial agreements”) if there is full and fair disclosure of the nature, extent and value of the property brought into the marriage with enough detail to allow the other party to make an informed decision about whether to sign the agreement. Courts will also examine whether there was duress or coercion before the agreement was signed before enforcing it.
“Full and fair” is a loaded term and has sparked disputes over whether an agreement is enforceable. A court hearing a case challenging the validity of an agreement will look at the totality of the circumstances to determine whether it was entered into freely and knowledgeably by the parties with each acting in good faith. Circumstances the court may give special consideration to are the relative sophistication of the parties, the time lag between the date of the agreement and the wedding day and whether the party contesting the agreement had an adequate opportunity to consult with legal counsel before signing.
Alimony can be limited or waived in an antenuptial agreement. However, if enforcement of the provision would leave the spouse financially destitute, this portion of the agreement will be declared void. Parties may not contract to unconscionable terms and the courts have authority to strike contractual provisions that are against public policy. Cary v. Cary, 937 S.W.2d 777 (Tenn. 1996).
An engaged couple contemplating an antenuptial agreement stands a better chance of getting an agreement that will hold up if the process is started well before the wedding date. Full financial statements with current appraisals should be prepared and each party should be given a fair amount of time to review the information and proposed agreement with legal counsel before it is signed.