State laws allow parties to generally bind themselves via premarital agreements with respect to a wide variety of rights and obligations between the parties in the event of separation, divorce, or death. Generally speaking, parties can agree, and a Court will enforce, agreements between themselves as to the division of assets and spousal maintenance. There are some exceptions, such as South Dakota, which will not enforce agreements as to alimony. Parties cannot agree to custody, parenting time or child support post-divorce as those affect the children. Decisions made need to be in the best interests of the children at the time of the divorce.
Most states also permit parties to enter into postnuptial agreements after the parties have married. However, it is common for additional requirements to exist for these to be enforceable, such as both parties being represented by counsel.
Courts review premarital and postmarital agreements and, while generally enforceable, Courts may not enforce if procedurally unfair (such as lack of opportunity for each party to obtain counsel, undue pressure, or a failure to fully disclose the earnings and property of the parties) or substantively unfair at either the time the agreement was entered into or the time of the divorce.
Family law is personal, emotional, and also complex, often involving complicated financial matters with tax implications. When you are faced with a life change involving your family that necessitates you to go before a Court, always consult with an attorney to understand your rights and to help you determine, given your individual facts and circumstances, whether you should be represented by counsel through the process.