Family Law

Prenuptial Agreements: Thinking Ahead

You just got engaged and almost out of nowhere the words "prenuptial agreement" come up. Talk about a romance-killer, right? Probably, at least a little bit. Let's face it, at first glance, asking for a prenuptial agreement doesn't exactly show your ever-lasting faith and trust in the relationship. It's almost like you're expecting the marriage to fail. The truth of the matter is, prenuptial agreements are very common, and emotion aside, they make good sense for many couples.

Some Basics

In simple terms, a prenuptial agreement or contract is where a couple sets out some ground rules about how the marriage will work before they actually get married. They're also called premarital agreements or contracts. They're valid and enforceable in every state and the District of Columbia. In fact, most states have adopted the Uniform Premarital Agreement Act (UPAA), which helps with writing and enforcing prenups.

These agreements can - and usually do - cover just about everything in case the marriage fails, such as:

  • How the property the couple gets during the marriage and brings into the marriage will be divided
  • Who's responsible for paying which debts the couple incurs during the marriage and any pre-marital debts each had
  • In most states, an agreement can state how much alimony or spousal support one spouse will pay the other and for how long
  • Many prenups also have clauses stating that the agreement isn't valid unless the couple remains married for a certain number years and that the agreement is invalid if one spouse is unfaithful during the marriage

There are some things that can't be settled in prenuptial agreements, like custody and visitation of the couples' children. Also, in most states, one spouse can't waive or give up her right to alimony in a prenup.

Not Just for the Rich Anymore

Prenuptial agreements have been around for centuries, and they were popular in Europe with royal families who wanted to protect the family fortune from gold-digging suitors. Today, while it's true that prenuptial agreements make the headlines only when a billionaire or celebrity has marital problems, everyday ordinary couples are making prenuptial agreements.

You should think about a premarital agreement if you:

  • Already own a home or other real estate
  • Own stocks or have a retirement account or 401(k)
  • Have children from a previous marriage
  • Have much more money and assets than your soon-to-be-spouse
  • Will be supporting the other spouse or your family while other spouse goes to college or graduate school

Not Set In Stone

Just because you do everything right and the agreement is signed, sealed, and delivered doesn't mean you're locked into the agreement. At any time, you and your spouse can agree to cancel or "rescind" the contract. Or, as Tiger Woods' recent predicament shows, the agreement can be changed. Just like any other prenup, the exact terms and language of Woods' prenup are private, but it's been reported the prenup was changed so that instead of getting $20 million in case of a divorce, Tiger's wife, Elin, will receive "substantially more." In addition, under the original agreement, the marriage had to last 10 years before Elin could get anything. Under the new agreement, the marriage only has to last seven years, which is just two years from now.

So, as you can see, a prenuptial agreement may be changed as the needs or circumstances of you and your family changes.

Some Do's and Dont's

If you're thinking about asking your fiance to sign a prenup, or if you've been asked to sign one, there are several things to consider:

  • Hire an attorney to write the agreement, or at the very least, to look it over before you sign it. You and your fiance should hire separate attorneys, too
  • Make sure that it lists all of the assets and debts of each party
  • Don't wait until the last minute. Any discussions about a prenup should take place very early in the engagement. And be honest about why you want (or don't want) an agreement
  • Get it signed well in advance of the marriage, or else it may be invalidated later. That's because getting signed just before the marriage makes it looked like one spouse was forced or "coerced" into signing it
  • Try not to think of it as an unromantic forecast of bad things to come. Rather, think of it as prudent and careful planning, like your will and other estate planning documents

Getting married is an exciting time. It's also a stressful time. There's a lot to do and plan for, not to mention that you're making a life-long commitment. Bringing up the subject of a prenuptial agreement adds to the stress, of course, but it may be for the best. Unfortunately, divorce rates in the US are high. And one good way to protect yourself in case your marriage fails is to make a prenup.

Questions For Your Attorney

  • My fiance and I live in Ohio but we're getting married in Tennessee. We may or may not move to Tennessee after the marriage. Do we need Ohio or Tennessee lawyers to help with a prenuptial agreement, or does it matter?
  • How much will you charge to look over a prenuptial agreement that I wrote myself? Can you explain any problems or answer questions from both me and my fiance?
  • Before we got married, by fiance and I talked extensively about a prenuptial agreement. We came to an agreement on just about everything, and we even have some handwritten notes. We never actually had the agreement put into writing and signed. Now we're getting divorced. Is the prenuptial agreement enforceable?
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