Prenuptial Agreements in Alabama: What You Should Know and Consider

What is a Prenuptial Agreement

A prenuptial agreement, commonly referred to as a "pre-nup," is a written contract between two people in a romantic relationship who are planning to get married. In Alabama, these agreements are governed by the Uniform Premarital Agreement Act, which came into effect in 2010. Simply put, a prenuptial agreement is intended to define the financial responsibilities and expectations of each spouse during the marriage, as well as outline what should happen to the couple’s property (and property held prior to the marriage) in the event of a divorce or separation. The agreement can also include terms related to spousal support, property division , and inheritance in cases of death.
The reason that couples in Alabama consider entering into a prenuptial agreement can vary from case to case. Some couples may have children from a previous marriage and want to protect the inheritance rights of those children. In other cases, one party may be bringing a significant amount of assets to the marriage that they want to protect from claims by their spouse. Other couples may simply wish to avoid the lengthy and expensive process of a divorce by addressing many of the issues that typically arise during divorce negotiations.
Given how critical a prenuptial agreement can be to ensuring that assets and finances are handled in a way that is fair to both parties, it is an important contract that must be entered into carefully and with the assistance of experienced legal counsel.

Legal Prerequisites for a Prenuptial Agreement in Alabama

In Alabama, prenups are written contracts that must be created according to certain conditions in order to be considered valid. The four overarching legal requirements are: Both parties need to comply with the statute of frauds, which requires all agreements to be in writing rather than verbal. Both parties need to fully disclose their assets, debts, income and expenses to their spouse-to-be. The agreement cannot be unconscionable. An unconscionable deal is one that is so incredibly one-sided, it shocks the conscience of the court. Both spouses must sign the agreement voluntarily. However, if one or both parties feels that they need an attorney, the agreement cannot be considered free from impacts of duress.
Most premarital contracts contain information about divorce and separation, but they can also cover agreements on other issues, like: It’s important to note that any contract aimed at modifying the amount of child support or custody enforceability is not valid under Alabama law.

Advantages of a Prenuptial Agreement

Often individuals and couples marry each other without much thought as to what will happen in the event of a separation or divorce. A prenuptial agreement is designed to provide parties with the freedom to contract and openly discuss their respective rights with respect to property division. A prenuptial agreement allows individuals and/or couples to address anything from the equitable distribution of marital property to alimony.
Below is a non-exhaustive list of benefits for entering into a prenuptial agreement:
A. Intent for Property Division
If a couple has specific intentions for the equitable distribution of their property upon separation or divorce, a prenuptial agreement can address those intentions.
B. Freedom of Contract
Individuals have the ability in Alabama to contract freely and a prenuptial agreement is one method of exercising that freedom.
C. Predetermined Spousal Support
In Alabama, an award of alimony requires the court to consider all relevant factors including age, health, conduct of the parties, earning ability and the ability of a spouse to pay alimony. An individual may enter into a prenuptial agreement if he or she wants to forego the possibility of alimony being ordered in the event of a subsequent divorce.
D. Intent for Intentional Interference with Marriage
An individual may want to protect himself or herself from the intentional interference of a spouse. Intentional interference of a marriage is based on Alabama case law (Worsham v. Worsham, 89 So. 2d 811, 264 Ala. 353, 1947). The threshold burden to show intentional interference is very low in Alabama. The next burden of proof is to establish that the conspirator induced the divorce. If a party seeks a prenuptial agreement to protect against this it is a good idea to specify the intent for intentional interference of marriage in the agreement.
E. Intentional Torts
Individuals in Alabama are able to sue parties for various intentional torts including but not limited to alienation of affections and infliction of emotional distress. If a party wants to protect themselves from a person bringing such claims against their spouse or wants to provide themselves with the ability to sue persons outside of their marriage for intentional torts, they may want a prenuptial agreement.

Common Myths About a Prenuptial Agreement

Unfortunately, like many vital subjects, there is a heavy load of misinformation that causes people to avoid looking into prenuptial agreements (also called antenuptial agreements). Below are three of the most common.
Myth: Prenuptial Agreements are Only For People With Lots of Assets. The truth is they can be for anyone with income and/or property. Even if you don’t own a home or have substantial liquid assets, a prenuptial can protect you in a divorce with issues like debts, alimony and division of earnings. In fact, prenuptial agreements can be even more important for people of modest means, so they don’t find themselves at a disadvantage in the event of divorce.
Myth: Prenuptial Agreements are Only for the Wealthy. Again, the misconception about prenuptial agreements is that they’re mainly for people with lots of money and a lot to lose. But, this is simply not true. Many people who go into second or even third marriages have done well financially and want to protect their wealth and property from a future ex-spouse. Those with children from a previous marriage — and wanting to protect their children from those assets — often find prenuptial agreements helpful and worthwhile.
Myth: Prenuptial Agreements Are a Way to Get Out of Paying Alimony. Prenuptial agreements are allowed to cover the issue of spousal support/alimony, but they can’t be one-sided when it comes to enforcement. That is, there can’t be an absolute waiver of alimony based on future circumstances. While a person can agree to give up their right to alimony, a judge will not uphold a one-sided agreement if, for instance, the spouse that gets the benefits is found to already be in a healthy relationship 3 months after the divorce because they have married someone with – say – a lot of money.

How to Create a Prenuptial Agreement in Alabama

Alabama law dictates that a prenup must be in writing and voluntarily executed by the spouses after full disclosure of the assets of the parties (or written waiver of the disclosure). The information disclosed should be enough to permit the other spouse to make an informed decision about entering the agreement – not necessarily listings of every asset. Once the agreement is drafted and both spouses understand the terms and conditions, the prenup must be signed by both. It must also be notarized by a notary public , although it does not need to be recorded with a county or court office. The important thing is that each party – and this means each spouse – has legal representation before and during the execution of the prenup. Also, to avoid unnecessary confusion, the agreement should be made part if any filing for marriage license. Alabama law requires each party to sign the notarized document and file it with the probate court. It should be noted at this time that prenuptial agreements cannot be made to avoid child support obligations.

Upholding a Prenuptial Agreement in Alabama

To be enforceable in Alabama, a prenuptial agreement must be in writing. However, meeting this basic requirement does not mean that the agreement will be upheld after divorce. To further determine whether the agreement will be upheld, courts look to two sources: the provisions of the agreement itself and the Alabama Uniform Premarital Agreement Act (AUPAA), codified at Alabama Code Section 30-4-1 et seq.
Under the AUPAA, a prenuptial agreement entered into by a husband and wife prior to marriage may not be invalidated unless the party against whom enforcement is sought proves that:
If the party seeking to enforce the agreement proves that the provisions for the future disposition of property or the right to future alimony are unconscionable, the agreement will not be upheld. A court interpreting a prenuptial agreement balances the proof of unconscionability with the totality of the facts and circumstances present when the contract was signed.
Factors to consider when reviewing whether the prenuptial agreement was entered into under unconscionable circumstances, includes whether:
Even if a prenuptial agreement satisfies the basic writing requirement and is not unconscionable, it may still not be enforceable if the prenuptial agreement expressly or implicitly obligates either party to seek a divorce. If this is the case, the agreement violates public policy and will not be upheld.
In general, Alabama courts favor the enforcement of prenuptial agreements. Despite potential factors inhibiting enforceability, such as the lack of a fair and reasonable provision for one of the parties, the provisions as to future disposition of property and/or the right to future alimony, or unconscionability, a prenuptial agreement that meets the requirements of the AUPAA substantially, if not completely, controls the outcome of property division and spousal support issues at the time of divorce.

When a Prenuptial Agreement May Make Sense

Some common circumstances in which a court may not enforce the terms of a prenuptial agreement or rendering it invalid include the following: Fraudulent conduct: A party conceals information from another party or provides false financial information resulting in undue influence or even duress. If either party contends the other was withholding necessary information or misrepresented about their assets, it would be in their best interest to submit that evidence in court. Procedural Unconscionability: Largely concerned with whether the agreement was entered into shortly before marriage and/or whether a party entered into the agreement without sufficient time to meaningfully consider its terms . Similarly, if the weaker party was not given sufficient opportunity or means to discover the financial facts of the other’s situation. Substantive Unconscionability: Usually involves showing that an agreement was one-sided and therefore not based on the fairest of terms. Dissolution under duress: If either spouse found that they had no choice but to sign the agreement, that agreement could fail. Evidence of duress includes withholding basic utilities, limiting funds for basic expenses, or threatening to cancel the wedding unless the agreement is signed.