Prenuptial Agreements, Love and Marriage
February is the month of love, engagements and major life changing decisions. This Valentine’s Day I hope you have the opportunity to celebrate love in whatever way best suits you! If you find yourself thinking about proposing or recently having become engaged, congratulations! The following is a resource to help you determine whether or not you should explore a Prenuptial Agreement.
A prenuptial agreement can define a Husband’s 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. Simply put, a Prenuptial Agreement predetermines what happens to certain assets should a marriage end.
I strongly believe that it is an excellent idea to secure a prenuptial agreement so there are no misunderstandings regarding 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. Please understand that like many other areas of law, there is no substitute for experience, attention to detail and quality representation.
A question I am often asked is whether or not someone needs a Prenuptial Agreement. The answer is always: it depends.
The first factor you must consider is what assets one or both parties is bringing into the marriage. 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. Does the asset have liability? What is the extent of that liability?
Another factor that often leads people to look into prenuptial agreements are past support obligations. An example would be someone entering into a 2nd marriage and they are still paying spousal support to their former spouse. That person may want avoid paying spousal support in the future if the second marriage does not work out.
I have also had cases where one spouse passes away and my client seeks a prenuptial agreement when remarrying to protect their children’s inheritance.
I recommend to my clients that they move forward with a Prenuptial Agreement but then to put it on a closet shelf and forget about it. 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 and peace of mind. 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. Who pays the mortgage if it is wife’s house? 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 and is helping monthly with the mortgage. This situation can be addressed with a family law attorney.
February is the month of love, but there is no sense in blindly following your heart and failing to protect yourself or to provide for your children from a prior marriage. It is always a good idea to seek an attorney’s opinion before you start planning for your big day. A Prenuptial Agreement provides peace of mind that can lead to a happy marriage!