A prenuptial agreement is a written agreement entered into between two people prior to their marriage. Essentially, a prenuptial agreement sets forth how property will be divided if the parties divorce or one or both of the parties dies. The theory behind a prenuptial agreement is that the parties, and not the law of the State of Tennessee, will determine whether property is shared when a marriage ends by divorce or death.

Historically, prenuptial agreements were not favored in Tennessee law. However, in the last few years, that has changed. Courts now routinely uphold prenuptial agreements and even indicate that it is likely more equitable for the parties, while getting along, to determine what is fair in the event in the future they no longer get along.

In a typical prenuptial agreement, the parties agree that all property brought into the marriage by one party will remain that party’s property if the marriage ends. Further, a prenuptial agreement normally states that property acquired during the marriage in the name of only one party would remain that party’s property should the parties divorce. If property is acquired during the marriage and titled in both parties’ names, generally that property would be equally divided if a divorce occurs. A prenuptial agreement can also address whether or not alimony may be awarded if the parties divorce.

Tennessee law addresses what happens to a party’s property when he or she dies. There are various laws that address what portion of property goes to a spouse upon death and a spouse in Tennessee is generally granted a certain amount of property even if the deceased spouse specifically excluded his or her spouse in a will. A prenuptial agreement states that the parties agree that those provisions of Tennessee law do not apply to them and anything a spouse receives when his or her spouse dies, is based solely upon what is in the deceased spouse’s will.

A prenuptial agreement is a way for the parties themselves to control the division of their property instead of allowing a judge to make those decisions if either the parties divorce or a spouse dies.

A prenuptial agreement may not address custody or child support as Tennessee law says parties cannot create, ahead of time, a binding contract on issues of parenting if the parties divorce. This would be against public policy as the law of the State of Tennessee states that a court is obligated to make those determinations based upon the best interest of the child(ren).

There are many pitfalls that can occur in the preparation of a prenuptial agreement. You should hire an attorney who is experienced in drafting binding, prenuptial agreements. The attorneys at Patton | Pittman have the experience necessary to prepare a prenuptial agreement that will provide you with the protection you need should the unexpected occur.