An antenuptial agreement, also known as a pre-nuptial agreement, is a contract between two future spouses which defines their future financial responsibilities to each other in the event of death or dissolution of the marriage.  You might be surprised to learn that antenuptial agreements are common. In fact, you probably know a couple who has one.

A commonly asked question, which you might be thinking right now, is, "Why would someone think they need a pre-nup? That takes the romance out of the wedding." The short answer is: not every couple wants or needs an antenuptial agreement.

For example, if neither party has substantial assets, then they should be thinking more about the color of bridesmaids dresses or where to go on the honeymoon or which caterer to hire for the reception.

However, there are many situations where one might consider having an antenuptial agreement. The most common circumstance is where one party is somewhat older, more established, and has accumulated substantial assets. The older spouse has likely been married before, and is providing a hefty sum to his former spouse. He does not want to get "burned" again, so he wants a pre-nuptial agreement. Although this is probably the most typical scenario, there are other antenuptial agreement situations.

Take the imaginary couple John and Sally. He is 59 and she is 62. Both John and Sally were married in their early 20s. John has two adult children, and Sally has three adult children. John's prior marriage ended in an amicable divorce five years ago. Sally's husband died 10 years ago, leaving her an enormous estate. After a whirlwind three month romance, John and Sally decide to get married. They agree that they should execute an antenuptial agreement because Sally is concerned that the assets which were left to her by her late husband should go to her three children.

An antenuptial agreement would define John's and Sally's rights with respect to the other's property during marriage, or upon one spouse's death, or upon divorce or annulment of the marriage.

An agreement would typically define marital and non-marital property. Marital property would be defined as that accumulated by the parties after their marriage and placed in their joint names. As an example, a house the couple purchased together after their marriage or a joint savings account would be marital property. The parties could decide how marital property would be divided in the event of a divorce, determine the amount of alimony, if any, or might require the parties to waive any claim to spousal support. It's really up to the parties to decide what terms they want in their contract.

An antenuptial agreement may provide that each spouse waives his or her statutory rights to the estate of the other spouse, and that each spouse has the right to dispose of his or her non-marital property as he or she desires. For example, each spouse would be able to invest his non-marital property how he chooses, or to give it to anyone he chooses, or even to try the high stakes tables at the casinos. More importantly, this assures that each spouse can leave his non-marital property to whomever he wishes in his Will, even to the exclusion of the other spouse. On the other hand, he would also have the right to leave everything to his spouse, if he so chose. This type of agreement for John and Sally would allay Sally's fears about leaving her late husband's estate to only her three children.

Another question which is frequently asked is whether an antenuptial agreement is enforceable. Historically, antenuptial agreements were thought to be against public policy because they encouraged divorce. However, beginning in the early 1970s, many states rejected this view and began enforcing antenuptial agreements. As early as 1904, the Mississippi Supreme Court held that antenuptial agreements are enforceable as any other contract. Since that time, Mississippi has consistently enforced antenuptial agreements.

Mississippi case law has held that there are two requirements for antenuptial agreements. The first requirement is that an antenuptial agreement must be fairly executed. This means that if the agreement is signed by one spouse under duress or threat from the other spouse, and not of his own free will, then the agreement may not be enforceable. The other requirement for antenuptial agreements is that each party must fully disclose his assets in writing. Each party typically attaches a schedule of assets as an exhibit to the agreement. This practice helps to clear up any misconceptions either party may have regarding the extent of the other party's assets. Under these two conditions, an antenuptial agreement is enforceable like any other contract.

Antenuptial agreements are enforceable, however, only as they effect the rights of the two spouse. An antenuptial agreement cannot determine the custody of minor children in the event of divorce, or the amount of child support necessary for the minor's care and maintenance. These decisions are left to the discretion of the judge, and provisions of this type in an antenuptial agreement are not enforceable.

So, if you are planning a wedding and thinking you may need an antenuptial agreement, begin discussing the issue with your dearly beloved early so that you have plenty of time to come to a clear understanding. If you are planning a wedding and do not think you need an antenuptial agreement, hot pink is definitely out for bridesmaids, and I suggest a stay at the Victoria House, Ambergris Caye, Belize, as your honeymoon destination.

Stacey Perkins Stracener is an associate with the Wright Law Firm in Jackson.