Many couples who write a living together contract end up getting married. What happens then?
Your living together contract will be enforceable after marriage only if the following are true:
To be enforceable, premarital (prenuptial or premarriage) contracts must be made in contemplation of marriage. That means that most couples who prepared living together agreements will have to sign a new premarital agreement if they decide to marry and want to keep the same arrangements they’ve had. If they don't marital rules in their state will apply.
Premarital agreements allow people who plan to marry to modify the contract imposed by state marital law. You can establish your own property ownership rules, different from the state’s marital property laws, in a premarital agreement. So if you do want the property ownership terms of your living together agreement to apply during your marriage—for example, if you’re an older couple and want to keep property separate—you can normally do this by rewriting your agreement as a premarital agreement. You can also agree in advance as to how much support one person will pay the other in case of divorce by using a prenuptial agreement.
Twenty-seven states have adopted the Uniform Premarital Agreement Act, which lets couples make premarital written contracts concerning ownership, management, and control of property; disposition of property at separation, divorce, and death; alimony; wills; and life insurance beneficiaries. See below for the main provisions of the Act and a list of states that have adopted it.) The states that haven’t adopted the Act have other premarital agreement laws, which often differ in only minor ways from the Act. In every state, couples are prohibited from including provisions about child custody or support—the court, not the couple, must make these decisions.
Premarital agreements are usually upheld by courts unless one person shows that the agreement is likely to promote divorce (for example, by including a large alimony amount in the event of divorce), was written and signed with the intention of divorcing, or was unfairly entered into (for example, a spouse giving up all rights to the other’s future earnings without the advice of an attorney).
Here are the main provisions of the Uniform Act.
(a) Parties to a premarital agreement may contract with respect to:
(1) the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
(2) the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
(3) the disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
(4) the modification or elimination of spousal support;
(5) the making of a will, trust, or other arrangement to carry out the provisions of the agreement;
(6) the ownership rights in, and disposition of, the death benefit from a life insurance policy;
(7) the choice of law governing the construction of the agreement; and
(8) any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
(b) The right of a child to support may not be adversely affected by a premarital agreement.
How to Convert Your Living Together Contract Into a Premarital Agreement
If you wish to marry and convert your living together contract into a premarital agreement, follow these steps:
1. Use your upcoming marriage as an opportunity to take another look at your agreement; make any agreed-upon updates and changes.
2. Rewrite your agreement. Call it a prenuptial or premarital agreement, and state that it is made in contemplation of marriage and does not take effect until you marry.
3. Because even a small mistake can result in a court later refusing to enforce your agreement, have your new agreement reviewed by an attorney experienced in this area. In most cases, each partner should have an attorney review the agreement.
4. Sign your agreement in front of a notary public. For more information about premarital agreements, see Prenuptial Agreements: How to Write a Fair & Lasting Contract, by Katherine E. Stoner and Shae Irving (Nolo). For legal help preparing your agreement, see Nolo's Lawyer Directory for a list of local family law attorneys.