PRENUPTIAL AGREEMENTS

A prenuptial agreement, or a prenup, is a written contract where a couple states their rights and responsibilities regarding premarital and marital assets and debts, and what would happen should their marriage end in divorce or death. A prenup can be a wise investment, not only because it outlines a couple’s finances, but because it can thwart a costly and contentious divorce if the marriage doesn’t work out.

There are multiple justifiable circumstances that may require a prenup, including:

  • One or both of the parties has already been married

  • One or both parties have children from a previous marriage/relationship

  • There is a disparity in wealth between the two parties

  • One party has significantly more debt

  • One or both parties own a business

  • One or both parties has an inheritance

Read some more detail below about the specifics of prenuptial agreements.

WHO NEEDS A PRENUP?

Contrary to popular opinion, prenups are not just for the rich. While prenups are often used to protect the assets of a wealthy fiancé, couples of more modest means are increasingly turning to them for their own purposes. Here are some reasons that some people want a prenup:

Pass separate property to children from prior marriages. A marrying couple with children from prior marriages may use a prenup to spell out what will happen to their property when they die, so that they can pass on separate property to their children and still provide for each other, if necessary. Without a prenup, a surviving spouse might have the right to claim a large portion of the other spouse's property, leaving much less for the kids.

Clarify financial rights. Couples with or without children, wealthy or not, may simply want to clarify their financial rights and responsibilities during marriage.

Avoid arguments in case of divorce. Or they may want to avoid potential arguments if they ever divorce, by specifying in advance how their property will be divided, and whether or not either spouse will receive alimony.

Get protection from debts. Prenups can also be used to protect spouses from each other's debts, and they may address a multitude of other issues as well

IF YOU DON'T MAKE A PRENUP

If you don't make a prenuptial agreement, your state's laws determine who owns the property that you acquire during your marriage, as well as what happens to that property at divorce or death. Property acquired during your marriage is known as either marital or community property, depending on your state. State law may even have a say in what happens to some of the property you owned before you were married.

MAKING A VALID PRENUP

As prenuptial agreements become more common, the law is becoming friendlier toward them. Traditionally, courts scrutinized prenups with a suspicious eye, because they almost always involved a waiver of legal and financial benefits by a less wealthy spouse and they were thought to encourage breakups.

As divorce and remarriage have become more prevalent, and with more equality between the sexes, courts and legislatures are increasingly willing to uphold premarital agreements. Today, every state permits them, although a prenup that is judged unfair or otherwise fails to meet state requirements will still be set aside.

However, because courts still look carefully at prenups, it is important that you negotiate and write up your agreement in a way that is clear, understandable, and legally sound. If you draft your own agreement, which we recommend, you'll want to have separate lawyers review it and at least briefly advise you about it -- otherwise, a court is much more likely to question its validity.