Marital Agreements

There are several different types of agreements related to marriage. The main contract is the marriage contract itself, which is your agreement to marry your spouse. Other agreements that married persons may enter into include:

• Prenuptial agreement: This is a contract that you and your spouse enter into before the marriage. This contract describes what property and financial assets, such as stocks, bonds, etc., you and your spouse bring into the marriage known as “pre-marital” assets and how those pre-marital assets will be handled during the marriage and in the event of a divorce. The pre-nuptial agreement will also include how property and assets acquired during the marriage should be divided in the event of a divorce. Both you and your spouse need to be represented by attorneys – usually separate attorneys – and complete disclosure of all property and assets owned before the marriage will increase the likelihood that the prenuptial agreement will be enforced.
• Postnuptial agreement: This is a contract that you and your spouse enter into after you are legally married and describes how your property and assets will be divided in the event of divorce or death.
• Separation agreement: This is an agreement in which you and your spouse agree to live separately and apart from one another without getting divorced. The separation agreement addresses how you and your spouse want to handle child support, child custody and visitation, spousal maintenance, and dividing up your property and assets.
• Marital settlement agreement: This is an agreement in which you and your spouse agree to end your marriage and you may be able to agree on the details without getting the court involved. The marital settlement agreement, also called a stipulation of settlement, addresses how you and your spouse want to handle your property and assets, spousal and child support obligations, and visitation and custody arrangements without court involvement.

Each of these agreements can usually be enforced by either spouse. However, sometimes the agreements are challenged and a court may decide that the agreement is not valid because its provisions are not fair and reasonable when the agreement was made, or the provisions are unconscionable at the time of the judgment of divorce. An unconscionable agreement has been defined as one that no person in his or her senses and not under delusion would make on the one hand, and no honest and fair person would accept on the other hand, leaving the Court with a lot of freedom to decide what is unconscionable.

Legal Editors: Pasquale J. Crispo and Elliot Polland, April 2015 (updated June 2020)