LOVE, MARRIAGE AND PRENUPTIAL AGREEMENTS

Do you need a prenuptial agreement if you are about to be married? The answer is: it depends. If you are just starting out and there are no assets to be divided you may not need one. However, when people come into a marriage with assets it is important to understand the legal implications. A prenuptial agreement can define a Husband and Wife’s responsibility in three areas: divorce, death of a party and financial or other domestic arrangements during the marriage. The agreement can be simple or it can be very complex. Often I see the issue of spousal support addressed. An example would be someone entering into a 2nd marriage and they are still paying spousal support to their former spouse. That person may not want to get into a situation where they again have to pay spousal support if the second marriage does not work out. I have had cases where the first spouse died and then my client wanted a prenuptial agreement to protect the inheritance for herself and her children’s sake.

I strongly believe that it is an excellent idea to secure a prenuptial agreement so there is no misunderstanding regarding the financial matters. It offers great protection especially if the agreement is well written and thought out. It is best practice to have both the potential husband and wife have attorneys involved. This makes it less likely that someone could say that they didn’t know what they were signing or they were forced to sign under emotional duress. If both parties have sound legal advice then it makes sense that the agreement should be enforced. I always tell my clients to go forward with the agreement and then put it on the closet shelf. Hopefully, the agreement will just gather dust and never be needed. But, if the new spouse doesn’t turn out to be who you thought they were, then there is some real financial protection. My feeling is that if your new love interest won’t sign a fair prenuptial agreement then you should not be marrying that person. It doesn’t mean that you don’t trust them, it just spells out what happens if the marriage does not work. Often I draft prenuptial agreements that state each person takes what they brought into the marriage and the parties may purchase joint property and then that property would be split on an even basis in case of divorce. This allows for some real estate transactions with your new love interest if that is desired. However, your past property is protected should the marriage not work out. It gets complicated for example if Wife brings a home to the marriage but then new Husband does a bunch of remodel work on the property and the value is enhanced. This situation can be addressed with a family law attorney.

February is the month of love but there is no sense in being stupid. Love should not be blind. It is always a good idea to seek a lawyer’s opinion before you start planning for your big day.