A t t o r n e y s A t L a w
726 M Street•Anchorage, AK 99501
Phone: (907) 279-4529
Fax: (907) 279-9223
Email: alaskanlawyers@gmail.com
Prenuptial & Post-Nuptial Agreements
By Steven Pradell
The Alaska Supreme Court has recognized both Prenuptial and Post-nuptial (after the marriage) agreements as effective contractual arrangements between couples who are planning to wed and those already married.
Generally, principles of contract law apply to the enforcement of such agreements, but the relationship of husband of wife can change the position of the parties and cause the court to question such agreements to insure that they are fair.
As the Supreme Court stated, "today, a divorce is a 'common-place fact of life.' As a result there is a concurrent increase in second and third marriages-often of mature people with substantial means and separate families from earlier marriages. The conflicts that naturally inhere in such relationships make the litigation that follows even more uncertain, unpleasant and costly. Consequently, people with previous 'bad luck' with domestic life may not be willing to risk marriage again without the ability to safeguard their financial interests. In other words, without the ability to order their own affairs as they wish, many people may simply forgo marriage for more 'informal' relationships.
Prenuptial agreements, on the other hand, provide such people with the opportunity to ensure predictability, plan their future with more security, and, most importantly, decide their own destiny. Moreover, allowing couples to think through the financial aspects of their marriage beforehand can only foster strength and permanency in that relationship. In this day and age, judicial recognition of prenuptial agreements most likely 'encourages rather than discourages marriage.'
In sum, both the realities of our society and policy reasons favor judicial recognition of prenuptial agreements. Rather than inducing divorce, such agreements simply acknowledge its ordinariness. With divorce as likely an outcome of marriage as permanence, we see no logical or compelling reason why public policy should not allow two mature adults to handle their own financial affairs. Therefore, we join those courts that have recognized that prenuptial agreements legally procured and ostensibly fair in result are valid and can be enforced."
The court listed three criteria to be used in judging the fairness of a given prenuptial agreement:
1. Was the agreement obtained through fraud, duress or mistake, or misrepresentation or nondisclosure of material fact?
2. Was the agreement unconscionable when executed?
3. Have the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable?
If none of the above factors are present, prenuptial agreements are generally upheld.
This article is not intended to provide legal advice and should not be relied on for that purpose.