What Are Premarital Agreements?
The goal of any marriage is to last a lifetime, however this is a hopeful and unrealistic outlook. Therefore, many couples decide that signing a prenuptial agreement ahead of time may be in their best interests. A prenuptial agreement is simply a legal contract between a couple that becomes effective upon marriage. It typically outlines financial rights and responsibilities, covering topics such as how to handle shared property during the marriage, division of assets if the couple divorced, what responsibility a spouse has to support the other after divorce, and who will receive any assets should one of the spouses die before the other. The "who receives what" provision in a prenuptial agreement is especially useful, as it provides both parties with peace of mind should something unfortunate occur. Many people assume that their spouse will inherit all of their possessions if they die first, but this may not be the case. You do not have the power to leave all of your assets to your spouse if you die without a will , as some of your property will automatically go to your children, parents, siblings, or other relatives by law. Having a prenup means you are able to easily avoid this issue. Prenuptial agreements are also a great tool for detailing and defining each party’s responsibility for debts. If anyone in the marriage has credit card debt or academic loans, the cost of paying off those debts can fall on the individual who did not incur them, even if it is not their responsibility to do so. A prenup makes it clear whose problem the debt will become. If you’ve been previously married and have children, you may want to include how those children will be handled in the event that you divorce again. This type of agreement even allows you to include how alimony, child custody arrangements, and child support should be handled, as well as the amount and duration of spousal support, if any. Though prenuptial agreements are not legally binding until after the couple has tied the knot, it is important that each party properly completes a statement of net worth and submits it to the other person.
What Is Public Record?
Public records are documents or pieces of information that are not considered confidential and are generally maintained by various authorities, agencies, and branches of government. As a result, these documents are available for public view, inspection, or consumption.
But why would any document become public? A variety of options exist, from a failure to claim "privileged" protection status to a simple necessity of law: some governmental offices require transparency to the public.
For example, marriage licenses are important legal documents filed by local government offices in the county where the marriage occurs. These records are required to be filed so that government agencies can access accurate statements of when and where a marriage occurred. In a similar manner, divorce decrees must be filed with local government offices.
Governmental agencies generally must be able to provide these documents for a variety of legal reasons, from verifying marital status or perform background checks to recording historical events. When drafting a prenup, you may have concerns about such documents becoming public record.
Are Prenups Open to the Public?
Confidentiality varies between states and a couple’s financial situation, but in some cases prenuptial agreements do become public record. An Oklahoma law firm notes that prenuptial agreements filed in local probate courts are listed on the docket and available to the public. But in other cases prenuptial agreements are considered confidential documents not available for public inspection.
For instance, in Ohio, Indiana and Illinois, prenuptial and postnuptial agreements must be in writing and in some cases can be signed by a spouse electronically. But prenuptial agreements filed in Ohio are generally deemed public record after they are filed. By contrast, Illinois law indicates that a prenuptial agreement can only be disclosed under certain circumstances, such as disclosure of its contents may be necessary to divide property, may be used to enforce an order of spousal support, or in a proceeding for legal separation or dissolution of marriage. They may also be disclosed to creditors or if the prenuptial agreement is being challenged.
In Ohio, the Family Relations Division makes no representations regarding whether or not a prenuptial agreement is accessible by the general public. "While prenuptial agreements may be public record in Ohio, in practice we do not keep them in our files" at the Franklin County Municipal Court.
Contrary to Ohio law, Indiana law provides that a prenuptial agreement signed by a spouse after the marriage is invalid. But prenuptial agreements filed in Indiana are considered a public record and are accessible by the general public.
How Are Prenups Covered by Privacy Laws?
Confidentiality is often a top priority when entering into a prenuptial agreement. Recognizing that the context of marital assets and divorce can be so very sensitive, parties to a prenup naturally want to do everything they can to keep the terms of their contract private.
The law provides certain protections for this important right to privacy. For instance, prenuptial agreements are filed under seal with the court, which means that they are only available to the parties involved in the agreement. With the presiding judge’s permission, they can be unsealed in the event of further litigation.
A confidentiality clause in your prenup can provide additional protection, as it specifically stipulates that the parties will treat the information in the agreement as private. It may identify the types of information that the parties find sensitive – such as details about assets, income and spousal support obligations – and obligate the parties to keep this information confidential.
Certain states may have additional provisions that protect a prenuptial agreement from being publicly filed. Be sure to discuss this with your family lawyer.
Keeping Your Premarital Agreement Private
 Once the prenuptial agreement is made public, it can never be made private again. Therefore, if privacy is of the utmost concern to you, here are three ways to keep your prenuptial agreement confidential:
 There is no requirement for parties to a divorce or separation proceeding to disclose their assets or debts in the Family Court unless they are ordered to do so. Therefore, conscientious litigators in cases involving prenuptial agreements should ignore their obligations to disclose unless and until they are ordered to do so by the court. This means that the powers and procedures related to discovery, which normally permit a party to demand financial disclosures from another party, should not be used with regard to asset and debt disclosure in the context of a prenuptial agreement pending court approval. If the agreement is approved, the parties would have no duty to disclose such information. If the prenuptial agreement is rejected, the parties would be otherwise obligated to fully disclose financial information with regard to equitable distribution.
 The majority of cases in New York settle without a trial. In virtually every case, the parties hope to settle by negotiation without court involvement. In most cases, the hope for negotiation occurs after the commencement of court proceedings for divorce, separation or annulment. That said, prenuptial agreements usually become effective at the time of the marriage. Therefore, a couple should consider alternative ways to settle their prenuptial agreement privately before the marriage. In reality , not all couples find it easy to agree upon terms of a prenuptial agreement. That is why many couples end up agreeing to negotiate amicably once they settle into their new married life. However unlikely, if you and your partner are self-motivated to address the terms of your prenuptial agreement before marriage, contracting the services of an honorable and experienced attorney is a great place to start.
 In virtually every case, prior to a prenuptial agreement being provided to the court for approval, the parties should enter into an agreement addressing the terms and conditions of confidentiality. However naive couples may be who enter into a prenuptial agreement, experienced litigators know that despite assurances of confidentiality in a prenuptial agreement, litigation in court leads to the documents being offered as evidence in open court. Therefore, it is up to us to seek to avoid that result. In order to avoid the disastrous results of the loss of confidentiality in the process of litigation, parties should stipulate to the confidentiality of their prenuptial agreement prior to giving the document to the court. Such an agreement may provide that the prenuptial agreement is solely between the parties and that attorneys, accountants and other professionals retained by the parties are also obligated to protect the confidentiality of the agreement.
 If you believe that confidentiality is critical to you or your new spouse, approach your attorney prior to your marriage and include the legal terms stated above in a prenuptial agreement. Your attorney can, if possible, include these terms or others suitable to satisfy both your and your spouse’s need for privacy and confidentiality.
What If There’s a Dispute?
While prenuptial agreements are private contracts, they can be subject to disputes that reach the court system. If this happens, some or all of the terms of the agreement may end up in the public record. Enforcement of a prenuptial contract may be sought via a family law matter with the help of an attorney, or through a separate lawsuit filed in a civil court. Depending on the legal action taken, the contract may have to become a part of the official court record and may therefore not be protected from public view. It is necessary however that any potential disputes related to a prenuptial agreement be handled directly by a family law attorney. Attempting to represent oneself leads to mistakes that may significantly impact the outcome of a dispute. A skilled family law attorney can navigate the process in a way that seeks the most benefits for the individual in the end.
Expert Views and Case Studies
Experts agree that while prenuptial agreements relate to personal, private matters, they are not confidential in the eyes of the law. "Prenuptial agreements reflect the last vestiges of freedom before assuming the legal bonds of marriage," says McMurdie, the president of the Association of Family and Conciliation Courts and a Michigan-based family law attorney for over 30 years. "Unfortunately, it’s little wonder that a society that respects its courtroom procedures would inevitably draft rules of procedure that intentionally or unintentionally disclose to the public basic terms of this fundamental contract."
As Davis explains, "It’s a matter of public policy for the courts to have procedures that permit them to proceed with a case, should it need to, without requiring full disclosure. In general terms, a court needs to be able to locate and rely on evidence produced in various proceedings, such as those regarding divorce or probate, in order to rule or decide something brought before it." Other states, she explains, do acknowledge that confidentiality is an issue when it comes to prenups and have drafted divorce and probate-specific laws to prevent the disclosure of certain documents even if they are filed with the court in the course of a valid proceeding. Wisconsin, for example, is one of these states with a "silhouette" law that permits the practice of filing documents under seal. As Davis says, "The courts are aware that because of the importance of privacy in issues like premarital agreements, it has become necessary to adapt to keep in step with our society."
Real-life cases about the issue of prenup privacy are few, however, as precedent in this area is scarce. "There just aren’t a lot of cases about prenuptial agreements to begin with, never mind the uniqueness of each," says Davis. But in one case where prenup secrecy was an issue, Judge John Marler of Florida’s Eighth Judicial Circuit did allow the sealing of prenuptial agreement records. The judge agreed that prenuptial agreements contain both personal information such as bank and income statements and information dealing with life-changing arrangements in the event of divorce or death. "What would the practical effect of removing the sealing of a prenuptial agreement?" Marler asked in his opinion. "The parties would likely tear up the agreement, sue each other for breach of contract, non-disclosure, unjust enrichment, fraud and interference with a business relationship. Less prosaically put—hundreds of thousands of dollars of animosity would spill into the judiciary as litigants engaged in scorched-earth revenge, demonizing each other on public stages: courthouses, internet blogs, and phone conversations—all matters of public record." A change to the rules of the Florida Supreme Court in 2010 solidified the right to file a prenuptial agreement under seal. Today, surrounding states like Ohio also now allow prenups to be sealed with the ensuing divorce or probate filing.
Perhaps the best way to deal with the issue of privacy, Davis says, is to implement what she calls a "visitation system" of prenuptial agreements. "It’s really about pragmatism," she says. "Prenuptial agreements aren’t necessarily going to be confidential. It really is about framing the conversation in the proper manner so that those creating these agreements understand and appreciate the law and its good sense about the matter."
Conclusion
The issue of whether prenuptial agreements are public or private is far more complex than it may seem. The bottom line is that it depends on the case. In many circumstances, prenuptial agreements are a matter of public record. In others, they are not. This can be confusing, especially for individuals who took the time to follow the letter of the law by registering their prenuptial contracts publicly , only to find out that these documents could still be sealed.
Avoiding a situation where your private financial information (or worse – that of your spouse or future in-laws) falls into the wrong hands is very important. This is particularly true if you have a high profile or you are concerned about your future spouse disclosing sensitive information related not just to your finances but also your health, personal life, reputation and/or business endeavors. Indeed, privacy can be even more important than protection. As with any other issue, balancing privacy with the protections afforded by prenuptial agreements requires careful consideration.