Prenuptial and (Sometimes) Postnuptial Agreements

Now that we are past Valentines Day and looking toward possible summer romances and weddings, I’d thought I’d discuss the considerations and values of prenuptial agreements, or “prenups.”

Prenups protect assets. If one partner has college, house, or credit debt, a prenup can protect the other partner from being responsible for the debt. Likewise, if one partner enters a marriage with significant assets that are meant to transfer to a previous marriage’s children, a prenup can protect the children’s interests in those assets. Before your second marriage, also consider updating your estate plan.

Prenups are predictable. A prenuptial can set the tone of marriage in many ways, especially financially. A prenuptial negotiation can seem more like marriage counseling. Partners learn about financial, property, and income expectations and are forced to divulge any unpleasant information. This can clear the air for a wonderful marriage based on communication, honesty, and clarity of each partner’s situation.

Prenups prevent nasty (aka expensive) divorces. A well written prenuptial agreement includes clauses for proceedings if divorce were to happen. These clauses include how real and personal property would be divided, alternative methods for resolving conflicts, domestic violence protection, and alimony considerations.

Real property, such as homes, businesses, lots, and acreage will be explained in the prenuptial and the parties would agree to how the property is titled: by one or both parties. The parties also agree how the real property would be divided: some could be sold and the money split, others could default back to the original owner, or property could be held in trust for the party’s children.

Personal property, such as Grandma’s silverware or Granddad’s guns where one party values these items and would want them to stay in the family can be specifically written into a prenuptial agreement.

Parties may agree to use mediation before filing for divorce. This settlement format allows parties to discuss, together, how to divide assets, decide child custody and support, and alimony. Mediation can cost significantly less than hiring an attorney in a contested divorce.  

Agreements might include clauses allowing, limiting, or denying alimony if the parties separate. These clauses can be enforceable as long as the parties knowingly and voluntarily entered the agreement and if the alimony clause would not cause either party to be impoverished after the separation.

Agreements may include clauses to protect the parties and children in the relationship from domestic abuse.

Child custody and child support clauses are not enforceable in prenuptial agreements. If a party has children from a previous relationships and the couple splits, the children from the previous relationship follow the party’s first divorce decree and child custody provisions.

Are you already married and need clarification of your financial assets? Postnuptial agreements may include property division, potential alimony, and decide if mediation or another alternative process would be a good first step before deciding to separate.

Regardless if a prenuptial or postnuptial agreement is in your future, any agreement entered by you and your future or current spouse must be voluntary, decided within a reasonable amount of time before major life decisions (such as getting married), and with the right of either party to consult an attorney or other advice before signing the agreement.
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Disclaimer
As always, my column is not legal advice, instead merely insight into the law and legal profession. If you have a general question about the law or legal profession, please email me at megan@mustoelaw.com or call my office at 435.610.1431.
 
 

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