Prenuptial or Antenuptial Agreements are favored by public policy in Tennessee. Tennessee Code Annotated 36-3-501 states:
Notwithstanding any other provision of law to the contrary, except as provided in § 36-3-502 any antenuptial or prenuptial agreement entered into by spouses concerning property owned by either spouse before the marriage that is the subject of such agreement shall be binding upon any Court having jurisdiction over such spouses and/or such agreement if such agreement is determined, in the discretion of such Court, to have been entered into by such spouses freely, knowledgeably, and in good faith and without exertion of duress or undue influence upon either spouse. The terms of such Agreement shall be enforceable by all remedies available for enforcement of contract terms.
The goal of antenuptial agreements is to protect parties who have already accumulated wealth and are considering marriage or as in most cases remarriage. Many times a person contemplating remarriage already has children by a prior marriage. One of the major goals of a prenuptial agreement is to ensure ones children will receive their inheritance in the event of a parent’s remarriage to someone else. The other primary objective is to protect the party entering into such a marriage from having their accumulated wealth dissipated in the event of a divorce.
When parties become engaged to marry, they then are in a confidential relationship. In the event of a prenuptial agreement, each party then has a fiduciary duty to make full disclosure of their assets and income. The extent of what constitutes a full and fair disclosure varies from case to case depending upon a number of factors, including the relative sophistication of the parties, the apparent fairness or unfairness of the substantive terms of the agreement, and any other circumstance unique to the litigants and their specific situation. While disclosure need not reveal precisely every asset owned by an individual spouse, at a minimum, full and fair disclosure requires that each contracting party be given a clear idea of the nature, extent and value of the other party’s property and resources. Though not required, the most simple and effective method of proving disclosure is to attach a financial statement indicating a party’s assets and liabilities. In addition, most parties will provide a tax return showing their present income. Randolph v. Randolph, 937 S.W. 2d 815 (Tenn. 1999).
Another way to ensure both parties have knowledge of the assets and understand the agreement is to provide each party with independent counsel. Thus, when parties are engaged, the opportunity for consultation and independent counsel should always be afforded if possible. Kahn v. Kahn, 756 S.W. 2d 685 (Tenn. 1988). Independent counsel is possibly the best evidence that a party has entered into an antenuptial agreement voluntarily and knowledgably. Randolph v. Randolph, supra at 822.
In addition to controlling the distribution of property in a divorce, a party may also contract for alimony and attorney’s fees and require the other party to waive those statutory rights in the event of a divorce. Cary v. Cary, 937 S.W. 2d 777 (Tenn. 1996). However, one area which the Courts will not allow to be contracted is custody and child support.