Prenuptial Agreements
A prenuptial agreement can be a practical solution to extensive property dispute during a divorce. Clearly, discussions regarding property distribution in the event of a divorce can be uncomfortable in any case but especially during wedding preparations. Nevertheless, a couple who can reach an agreement which protects the respective rights of each spouse can avoid much unnecessary stress later.
A prenuptial agreement is a contract entered into between a couple about to get married. The agreement can address specific issues relating to property division. A prenup is an effective tool for setting forth the rules of property division in the event of a divorce. Additionally, the agreement can limit the responsibility of the spouses for eachother’s debts. Essentially, the contract can set forth who gets what should the marriage fail and who will take responsibility for marital debt. The contract can be used to protect the rights of inheritance of children from a prior marriage. Spouses can give up their rights to inherit certain property, perhaps in exchange for other benefits. Estate planning which reflects a spouse’s true intentions pursuant to the prenup is recommended. A will can not supercede the provisions of a prenuptial agreement. In other words, testamentary provisions can provide more generous, but not less, benefits to a spouse than the agreement allows. A couple can agree to have certain property, such as family heirlooms, revert to their birth families in the event of death. Other issues such as the filing of joint and separate tax returns, the payment of household bills, setting up and maintaining joint accounts, agreements relating to specific purchases or projects, such as buying a home or starting a business, savings, payment of college or graduate school tuition for your spouse, providing for a surviving spouse through an insurance policy or will, and agreements as to dispute resolution, such as hiring a mediator or private arbitrator, can also be set forth in a prenuptial agreement.
Certain issues can not be adressed in a prenuptial agreement. A prenup can not be used to determine child support or custody issues. Provisions relating to alimony or spousal support are not permitted in some states. The agreement should not prvide an incentive for divorce or be seen as encouraging divorce. The agreement can not be used to regulate non financial personal matters such as the responsibilty for household chores or the use of last names. Finally, the contract should not promote any activity which is illegal or against state defined public policy.
An open discussion with your partner regarding the necessity for a prenuptial agreement and its general provisions is an important first step in negotiating terms that are acceptable to you both. Once both parties have agreed to creatation and general terms of a prenup, each should find his/her own attorney who has experience drawing up such agreements. A full disclosure of all assets is required. The agreement should be signed as far in advance of the wedding as possible in order to avoid the perception of coercion. The agreement should be fair to both spouses. Additionally, a prenup should be in writing and signed in the presence of, or witnessed by, an attorney.