If you have never been married and have never been in a relationship serious enough that your partner is a factor in your financial decisions, then it is hard to understand why people sign a prenuptial agreement. When you hear about prenups from a distance, they sound cynical. Who starts a marriage by outlining what their partner doesn’t get in the event of a divorce? Isn’t your marriage doomed to fail if you enter the marriage with a series of caveats you are serious enough about that you enshrine them in a legally binding contract? If you think this way, you are only seeing one side of the story.
A prenuptial agreement does not become legally binding until both spouses sign it. This means that if you have a prenup, you and your spouse agree about something, namely finances, and you have communicated your position clearly in writing, so you are sure that you agree, instead of just speaking vague promises in the heat of passion and each spouse adhering to his or her own fantasy version of what was said and what the other spouse meant by it. This is more than one can say for most couples. If done right, a prenup can prevent divorce; if done wrong, it can make a messy divorce even messier. Since prenuptial agreements are becoming more popular with engaged couples from all socioeconomic backgrounds, they are accounting for an increasing share of the revenues of family law attorneys.
A Prenuptial Agreement Can Give You Clarity About Your Finances, Even if You Never Get Divorced
If you do not sign a prenuptial agreement, then the court will follow your state’s default laws about marital property. If the marriage ends in divorce, this means that in states that follow the equitable distribution rule, the court will divide the couple’s marital property in the manner that the judge determines fairest if the spouses do not reach a property division settlement.
Community property states divide the couple’s marital property evenly in half in divorce cases that go to trial. If the marriage ends with the death of one spouse, the court will follow the decedent’s will if he or she has one; if not, it will follow the laws of intestate succession to determine how much the surviving spouse will inherit. If you sign a prenup, you should review and, if necessary, rewrite your will so that it accords with the prenup.
A prenup can designate certain assets as nonmarital that would ordinarily be marital under state law. It can also outline what the spouses can and cannot inherit from each other when one of them dies.
How to Ensure That a Prenup is Enforceable
From a legal perspective, a prenup is just like any other property-related contract. You have as much freedom in setting the terms of a prenup as you would an employment contract, lease agreement, business partnership agreement, or any other financial entanglement. In other words, the parties cannot agree to anything illegal, such as, “The husband’s counterfeit oxycodone pill business is his separate property.” The parties may not make any provisions about their current or future children; co-parenting matters are separate from divorce, which the court considers a breakup of a financial partnership. The courts issue parenting plans based on the children’s best interests. It is, however, possible to include provisions about pets in a couple’s prenup; “pet nups” are experiencing a surge in popularity, especially after Flossie the dog was a point of contention in Drew Barrymore’s divorce from Tom Green.
The courts will not enforce prenups if they determine that one spouse signed the prenup under duress or as a result of fraud. These are situations where the courts might not enforce a prenup:
- One spouse gave the prenup to the other the day before the wedding, and she did not have time to review it before signing
- The prenup is in English, but one spouse cannot read English, and instead of a professionally done translation, someone briefly summarized the content of the prenup to the recipient spouse in his language
- The couple married while the wife was pregnant, and she signed a prenup where she forfeited most of the marital property because this was the only we she could ensure that the child was born within wedlock
Your role as a family attorney is to review the prenup thoroughly with the client to make sure that your client understands what he or she is signing and to suggest changes, if appropriate.
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