Prenuptial / Premarital Agreements 1

What They Are, Who Should Have One and How They Work

A prenuptial (or “prenup”) agreement – also called a premarital agreement – is simply a contract between two parties before they get married. The prenup is designed to allow each party to lay out certain conditions and/or distinguish personal property (assets acquired before the marriage) from community property (assets acquired after the marriage). Prenups can also allow couples to provide for children from a previous marriage and protect assets in the event of death or divorce.

Overview:

  1. Considering a Prenup
  2. Negotiating a Prenup
  3. What a Prenup Can and Can’t Do
  4. How to Make Sure Your Prenup is Valid
  5. Challenging a Prenup in Court
  6. Postnuptial Agreements

1.  considering a Prenup

1.1 Pros & Cons to Prenuptial Agreements

It used to be that prenuptial agreements were exclusive to the rich and famous. Celebrities and multi-millionaires used them to keep their wealth safe and separate from their new spouse. This is no longer the case however, and prenups, necessary or not, are becoming more and more prevalent in even the most modest of households.

Couples with children from previous marriages can specify how those children will be provided for. Alimony can be outlined or waived (in some states), marital property can be limited and personal property can be specifically divided. A prenup can prevent you from becoming responsible for your partner’s debts and even reimburse you for certain expenses (such as college tuition) in the event of a divorce.

Used correctly, a prenuptial agreement can protect you, your spouse and your children from lengthy and sometimes volatile court battles later on. A request for a prenuptial agreement and subsequent negotiations can often cause an emotional rift between a couple though. The subject should certainly be approached with care.

1.2 Reasons to Get a Prenup

o decide if you need a prenup, ask yourself some questions: Do you own property that you prefer to keep in your birth family? Do you have assets acquired prior to the marriage that you want to keep separate from everything else? Do you have children from a previous marriage? Will you be putting your spouse through college or vice-versa?

All of these factors are good reasons to consider creating a prenup. Look at your personal situation and think about what would happen in the event of a death or divorce. If you have concerns about how certain issues might be handled, a prenup might just be the solution for you. [More…]

2. Negotiating a Prenup

2.1 How to Ask for a Prenup

Asking for a prenup can ignite a range of responses and emotions, including anger and feelings of betrayal.  Prenup negotiation can be a difficult emotional process.

Several things should be considered when asking your partner for a prenup. These factors can help your prenup negotiation go a bit smoother. First, decide what you want to accomplish and why. Explaining it to your fiancee will be easier if you’ve thought it out first. Then, be reasonable and make sure that each party is taken care of in the agreement. It shouldn’t be one-sided – and this will ultimately make it easier to reach a compromise. [more…]

2.2 Do You Need an Attorney for a Prenup or Can You Use Do-It-Yourself Prenup Forms?

If the prenup is relatively straightforward, addresses fairly simple issues and you are comfortable that all of you and your future spouse’s assets are disclosed and covered in the agreement, you may feel comfortable handling things yourself. There are do-it-yourself prenuptial agreement forms for this purpose [more…]

For more complex financial matters, however, you will want to retain an attorney to draft the prenup. If your partner has hired an attorney to draft the prenup, you may well want to hire your own prenup attorney to ensure your interests are protected. This is especially true when the prenup addresses complex legal and financial situations that you may not fully understand. [more…]

3. What a Prenuptial Agreement Can and Can’t Do

3.1 Division of Property

Without a prenuptial agreement, state laws govern how marital property and debts are distributed in the event of a divorce. These assets can sometimes include property that was originally acquired before the marriage, as spouses tend to mix or “commingle” funds and share in responsibilities. A prenup can override these laws however, allowing the two parties to dictate how specific items or assets should be distributed.

A prenup can also address any income that a couple receives during the marriage, limiting the amount that will be distributed as marital property. You can use a prenup to stipulate that debts incurred remain with the individual parties and you can even create agreements regarding income tax filings, savings accounts, life insurance and the distribution of household bills.

3.2 Spousal Support

In general, a prenuptial agreement can limit spousal support (also known as alimony) in both amount and duration. Some prenuptial agreements even contain waivers of alimony by one or both parties.

Spousal support is one area in which an attorney’s advice is recommended. Some states do not allow waiver of alimony in a prenuptial agreement. Others allow waiver or limitation but allow a court to determine whether or not that waiver or limitation is unconscionable at the time of the divorce. If it is, that clause of the prenup will not be upheld.

3.3 Child Custody

Child custody can never be addressed in a prenuptial agreement – at least not in a manner which will be upheld by any court. The court will always retain jurisdiction to make custody and visitation decisions based upon the best interests of the child.

3.4 Child Support

Similarly, child support cannot be established via a prenup. The support of the child must be based upon the needs of the child at the time of the child support judgment and not at the time of the prenup. A judge will use appropriate guidelines and calculations at the time of the divorce to set a child support obligation.

3.5 Ethical and Unethical Conditions and Triggering Events in Prenups

Prenuptial agreement cannot create contractual obligations or conditions which would be considered unethical or encouraging divorce. For example, prenups cannot divide up household chores, dictate relationships with friends or determine the number of children a couple will have.

4. How to Make Sure Your Prenup is Valid

4.1 Criteria for Validity of a Prenup

Each state has specific laws relating to the validity of prenuptial agreements. Generally, prenups must be in writing and signed by each party. Neither party can be under duress and the agreement must essentially fair to each party (although not necessarily equal). Each party must disclose his or her entire financial situation. And each party must have a sufficient amount of time to consider the agreement before signing it. [more…]

4.2 Uniform Premarital Agreement Act

Many states have passed some form of the Uniform Premarital Agreement Act to act as a statutory guide for the creation of valid prenups. The UPAA is a federal document that basically sets out what parties can and can’t do in a prenup. Just over half of the states in the U.S. have adopted this act (several more are currently considering it) and, of those, some states have also added additional criteria that must be met before a premarital agreement will be enforced. [more…]

4.3 Cohabitation Agreements

Many couples in recent years choose to cohabitate or live together with no immediate intention of getting married. Long term cohabitation arrangements eventually create a need to address financial matters and property issues between the two parties. To do this, couples often draft what’s known as a cohabitation agreement. This kind of document helps to fill in the protective gaps that unmarried couples often experience with regard to the legal rights and obligations that married couples are provided by law. A cohabitation agreement can be revised into a prenuptial agreement in the event that the couple eventually decides to marry. [more…]

5. Challenging a Prenup in Court

A prenuptial agreement, like any contract, can be challenged in court at the time of divorce. The challenging party will be required to prove that the prenup is invalid and unenforceable as a matter of law. Any of the elements of a valid prenup can be used to attack the enforceability of the agreement. Common grounds for invalidation of a prenup are duress, failure to disclose material information and assets and general unreasonableness.

It is important to remember that, despite a party’s best effort at a valid prenup, any agreement can be challenged. The court may or may not uphold the contract after hearing evidence but the mere existence of the agreement may not keep you from debating it before a judge.

6. Postnuptial Agreements

You can still address all these issues using what is known as a “postnuptial agreement.” A postnuptial is simply a prenuptial agreement that is being made after marriage, however keep in mind that the laws surrounding this type of arrangement is not well established.

If you decide to create a postnuptial agreement, you’ll need to outline what even prompted the document, such as a drastic change in your finances or a conflict that you both feel would be best addressed in a written contract. [more…]

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Discussion

  • Janquine

    My Father and His Second wife signed a preup before they got Married. My Father had a thriving successful Business that My Mother and He had worked hard for many years before my First Mother died. The Second Wife to be had just got a divorced and claimed she was fiancially sound. My Father took her word for it. However, after they married and 10 years later. She had caused him to lose His Business by making unsuccessful Business Decisions and He lost Everything. After this and 5 months later, She had Prenups drawn up and Had my Father sign off of it, as well as a New Will which did not include us. We know that our Father would have never done anything like this. The lawyer, the woman got was in trouble and the Lawyer died shortly but not until everything had been signed and notarized. All the remaining assets that belonged to my Father became her assets and We received nothing. We did not find out until our Father passed away 3 years later. So Remember, Parents can do Preups but they can also be Reversed and they don’t have to tell anything. Our Father was a Family Man and We had always Worked for Him and He made it clear that He wanted to Share all His assets with His Immediate Family. He said She was well off and that She would share her assets with her only Daughter. Well, She did’t pay for his Funeral and living a fine life now.