Marriage is a beautiful thing. It signifies the matrimonial bond and lifelong commitment that two persons are willingly giving themselves to one another. But, marriage can also be an awkward experience, especially for those couples contemplating a prenuptial agreement (“prenupt”) before the big day. The awkwardness surrounding prenupts can be uncomfortable and foster misconceptions about them. One of the biggest myths about prenupts is that people who want them do not truly love or trust their future spouse to be. A person’s interest in a prenuptial agreement, by default, does not necessarily indicate one’s uncertainty regarding the marriage, or make the commitment to marry another any less genuine. In our society, it is in our best interests to plan ahead, and that is nothing more than what a prenupt is meant to do. And given the high divorce rate in our country, planning ahead is not ill-advised.
A prenuptial agreement, also known as an antenuptual agreement, is a contractual agreement executed in contemplation of (before) marriage, which often undertakes to affect spouses’ rights and obligations during the marriage, as well as on its termination by divorce or death of a spouse. Prenupts may vary in terms of simplicity and complexity. As a result, prenupts may contain a vast array of provisions that govern many different aspects of the marriage and/or a future divorce. The most recognizable prenupt provision is the infamous adultery provision that provides legal repercussions for a spouse’s adulterous activity during the marriage. Basically, whatever is legally permissible to agree upon and does not violate some inherent Mississippi public policy may be included in a prenupt, including agreements in anticipation of divorce such as agreements regarding property division.
Under Mississippi law, prenupts are nothing more than contracts; so the general rules associated with contract interpretation, validity, and enforcement apply to prenupts. In re Cooper, 75 So. 3d 1104, 1107 (Miss. Ct. App. 2011). Mississippi courts generally will not render a valid prenupt as unenforceable so as “to relieve a party to a freely negotiated contract of the burdens of a provision which becomes more onerous than had originally been anticipated.” Kitchens v. Estate of Kitchens, 850 So. 2d 215, 218 (Miss. Ct. App. 2003). Nevertheless, like all premarital agreements in Mississippi, a prenupt must (1) be entered into voluntarily by consenting parties, (2) written, (3) make full and fair disclosure of the parties’ assets, (3) be fair and conscionable in the execution, (4) signed by both parties, and (5) filed with the Chancery Court. MS § 93-3-7 (2014); Bell on Mississippi Family Law § 23.02-23.03 at 668-672 (2d ed. 2011).
There is no reason to be skeptical or cynical of prenupts. The myths and disingenuous perceptions about prenupts are an injustice to the invaluable planning tool prenupts can be. It is never a bad idea to plan ahead–even in terms of marriage and divorce–and a prenupt can help you do just that.
As an experienced divorce and family law attorney in Mississippi, I have prepared prenupts and can help you navigate the issues surrounding the formation and enforcement of prenuptial agreements. I have litigated many cases throughout Mississippi and have the experience to zealously protect your interests and offer direct, meaningful legal advice to help you achieve your desired results. Should you or a friend need professional assistance and representation in forming or enforcing a prenuptial agreement or any other family matter, please contact the Law Office of M. Devin Whitt for a free consultation at (601) 607-5055.