Orientation to Pre-Nuptial Agreements
Orientation to Pre-Nuptial Agreements
A successful marriage requires falling in love many times, always with the same person.
- Mignon McLaughlin
A prenup is a contract entered into prior to marriage, civil union or any other agreement that typically includes provisions for division of property and spousal support in the event of divorce or breakup of marriage.
Premarital Agreement is a newer term used to refer to this document. In some states it is called an antenuptial agreement or simply a contract. If contact or agreement is signed after marriage it is known as postnuptial or marital agreement.
Who Needs a Prenuptial Agreement?
Prenups are not just for affluent people. This is commonly perception because prenuptials are often used as a means to protect the assets of the rich. Presently, couples of modest means use this agreement as a means to achieve their goals such as:
• Passing on separate properties to children from prior marriage. Having a prenuptial agreement by couples who have children from prior marriages can be a binding document which can be used to bequeath their respective children property if they pass away. The surviving spouse can usually claim a larger share of the property in the absence of a prenuptial agreement.
• Financial rights. This document can clarify the financial rights and responsibilities of couples, with or without children, wealthy or not.
• Avoid conflict during a possible divorce in the future. Having a prenuptial agreement can prevent potential arguments about the financial settlements and division of property during a divorce. Less uncertainty may lead to less acrimony. Some states will scrutinized heavily if a spouse gives up the right to alimony. It may not be enforced if it was found that the spouse did not understand what they were signing.
• Get protection from debt. Prenups can address a variety of issues and can help protect spouses from each other's debts.
Having No Prenuptial Agreement
During divorce or death, state law will determine who will own the property acquired during the course of marriage when no prenuptial document is available. Depending on the state, this acquired property may be known as marital or community property.
Since marriage is considered as a contract between two people, certain automatic property rights can accompany the union.
Without a prenuptial agreement, the spouse has the right to:
• Shared ownership. Property acquired during the course of marriage is expected to be divided by the spouses in case of death or divorce.
• Debts incurred during marriage that the other spouse may have to pay
• Marital or community property, which has to be shared in terms of management and control. The spouse can have the right to sell or give it away.
These are just a few of the things that may occur in a marriage without a prenuptial agreement. If this is not your preference, signing a prenup agreement is a good way to let you and your partner decide how your property should be handled. These laws are also known in other names such as marital property, probate laws and divorce.
How to Make Sure Your Prenuptial Agreement is Valid
Historically, courts were suspicious of prenups because they usually involved a waiver of legal and financial benefits by a less wealthy and less financially sophisticated spouse. As divorce and remarriage have become more prevalent, and with more couples opting for prenups, courts are increasingly willing to enforce Premarital Agreements. Nevertheless, a prenup that is judged unfair or otherwise fails to meet state requirements will still be set aside.
It is important that you negotiate and write up your agreement in a way that is clear, understandable, and legally sound. You can check out a free preview of a prenup at 12Law.