An Arkansas prenuptial agreement is a legal contract between two individuals intending to marry, outlining the division of assets and liabilities in the event of divorce. It can cover various financial matters, including property owned before marriage, debts accrued individually or jointly, spousal support, and the distribution of assets acquired during the marriage.
The agreement is governed by state law, which requires it to be in writing and signed voluntarily by both parties with full financial disclosure. While the state generally upholds the validity of prenups, courts may invalidate them if they are found to be unconscionable, fraudulent, or entered into under duress. Full and honest disclosure of assets and liabilities is essential to avoid disputes later on.
Legal Considerations
Laws:
- § 9-11-401 – Definitions
- § 9-11-402 – Formalities — Definition
- § 9-11-403 – Content
- § 9-11-404 – Effect of marriage
- § 9-11-405 – Amendment or revocation
- § 9-11-406 – Enforcement
- § 9-11-407 – Enforcement — Void marriage
- § 9-11-408 – Limitations of actions
- § 9-11-409 – Application and construction
- § 9-11-410 – Short title
- § 9-11-411 – Severability
- § 9-11-412 – Time of taking effect
Signing Requirements: The agreement must be in writing, signed, and acknowledged by both parties. Acknowledgment can be done through a formal declaration before an authorized officer, sworn affirmation by respective attorneys, agreement witnessed by a notary with a statement of understanding, or execution witnessed by two disinterested parties (§ 9-11-402).
Dividing Property: Equitable distribution (Franks v. Franks, 548 S.W.3d 871, 2018 Ark. App. 266 (Ark. Ct. App. 2018)).
Enforceability Requirements
- Essential Terms for Validity: Written form, voluntary execution, fair and equitable terms, signatures of both parties (initialing each page recommended), full disclosure of assets and income, recommendation for each party to hire their own attorney.
- Terms to Exclude: Child support and child custody terms, unconscionable provisions, and terms violating public policy.
- Additional Requirements: Waiving the right to financial disclosure is binding, and termination of a prenup requires a written agreement (Banks v. Evans, 347 Ark. 383, 64 S.W.3d 746 (Ark. 2002)).
Separate Property
Separate property is not subject to division in a divorce; it remains with its owner and includes assets owned before marriage, gifts, and inheritances. It can also include earnings and items bought with separate property. These arrangements must be specified in the agreement.
Alimony
Modification or elimination of the court-ordered financial support from one spouse to the other can be included in the agreement. However, a court can disregard the alimony provisions of a premarital agreement if the result would leave one spouse eligible for public assistance (§ 9-11-406(b)). State courts may grant alimony based on factors including financial need, ability to pay, standard of living, jointly owned property, income, earning capacity, health, and more.
