Prenuptial Agreements

Understanding Prenuptial Agreements

Marriage is not just a romantic commitment but also a financial partnership. Prenuptial agreements (informally referred to as “prenups”) offer a proactive approach to managing financial affairs by allowing couples to enter into marriage with clear expectations and reduced uncertainty. By setting clear terms for asset division and financial responsibilities, these agreements help foster transparency and trust, laying a strong foundation for the marital journey ahead.

Remember, when you get married you are essentially signing a contract with your spouse, whether or not you sign a prenuptial agreement with them! A prenuptial agreement simply allows you to modify the default contractual terms that the government would otherwise apply to your marriage.

What Is A Prenuptial Agreement?

A prenuptial agreement is a contract entered into by a couple before getting married that enables them to select and control many of the legal rights they acquire upon marrying, and what happens when their marriage eventually ends by death or divorce. Couples enter into a prenuptial agreement to supersede many of the default marital laws that would otherwise apply in the event of divorce, such as the laws that govern the division of property and the right to seek alimony, with mutually agreed terms that provide certainty, are customized for their specific relationship, and clarify their marital rights. 

Legal Framework Of A Prenuptial Agreement

Prenuptial agreements are instrumental in defining how assets and debts will be managed in case of a divorce or the death of a partner. The laws applicable to prenuptial agreements can vary by region, reflecting local legal nuances. Read on to learn about key aspects that are typically covered in a prenuptial agreement.

1st Aspect – Asset Division:

Clarifying the allocation of individual and shared assets in the event of divorce.

2nd Aspect – Debt Allocation:

Specifying who is responsible for debts accrued prior to and during the marriage.

3rd Aspect – Alimony:

Establishing terms for spousal support or alimony post-divorce.

4th Aspect – Retirement Benefits:

Agreeing on the treatment of retirement savings and pensions upon divorce.

5th Aspect – Property Rights:

Defining rights to properties acquired before and during marriage.

6th Aspect – Financial Transparency:

Mandating complete disclosure of financial status by both partners.

7th Aspect – Child Support & Child Custody:

Although prenuptial agreements cannot alter child support and child custody obligations as per law, some may include provisions regarding children from prior relationships.

Each of these points can be affected by the specific laws and regulations of your state, making it essential for couples to seek legal advice that is relevant to their jurisdiction.

Why Consider A Prenuptial Agreement?

The growing popularity of prenuptial agreements is driven by a range of factors that reflect the changing dynamics of modern relationships, such as increased participation by women in the work force, and increased awareness of the risk of divorce. This growth in popularity is backed by compelling data, with the American Academy of Matrimonial Lawyers (AAML) reporting a 51% increase in prenuptial agreements among millennials. The increased popularity of prenuptial agreements amongst this age cohort reflects the evolving attitudes of a generation that has grown up viewing marriage as an equal partnership between spouses with their own careers and separate assets. 

Below we describe some key reasons why couples are increasingly considering prenuptial agreements.

1st Reason – Protecting Individual Assets:

Prenuptial agreements establish clear guidelines on the treatment of individual assets like real estate, investments, or inheritances, especially pertinent for those with substantial assets prior to marriage.

2nd Reason – Clarifying Financial Responsibility:

Prenups enable couples to specify their financial responsibilities and expectations within the marriage, preventing confusion and potential disputes.

3rd Reason – Mitigating Divorce Risk:

Prenups offer protection of individual financial interests in the unfortunate event of marital dissolution.

4th Reason – Debt Allocation:

Prenuptial agreements can designate responsibility for pre-existing debts and can shield individuals from liability for their partner’s debts.

5th Reason – Business Preservation:

Particularly for business owners and entrepreneurs, prenups can help ensure that their ownership and control of a business remain unaffected by divorce.

6th Reason – Spousal Support Customization:

Couples can define custom terms & conditions for alimony or spousal support, fostering certainty and equity in the event of divorce.

7th Reason – Protecting Inheritance Rights:

Prenups can clarify the distribution of assets to children from previous relationships, which is essential for effective estate planning.

The Role Of Legal Counsel In Drafting Prenuptial Agreements

Retaining a lawyer to draft a prenuptial agreement helps ensure that the agreement is not only legally valid but also equitable and reflective of the couple’s wishes.

It is strongly recommended to retain a lawyer to draft a prenuptial agreement for you, due to the complex legal issues involved. In fact, in certain states, failure to retain an attorney when negotiating a prenuptial agreement could cause the agreement to be thrown out in court! An attorney will perform the following roles while drafting your prenuptial agreement.

1st Role – Ensuring Fairness & Compliance:

Lawyers ensure that the agreement is fair and compliant with state laws. They understand the nuances of family law and can write an agreement that will hold up in court.

2nd Role – Mitigating Coercion Concerns:

Courts have been known to entirely disregard a prenup if the evidence shows that a spouse was bullied into signing the prenup. Using legal counsel during the prenup negotiation process helps prevent future claims of duress or coercion from overturning the prenup. A lawyer can help ensure that both parties understand the agreement’s terms and sign it voluntarily.

3rd Role – Enabling Financial Disclosures:

Attorneys facilitate the financial disclosure of all assets and liabilities of the parties, which is a prerequisite for the formation of a valid prenuptial agreement.

 4th Role – Tailoring to Individual Needs:

Every couple’s situation is unique. Lawyers can tailor the agreement to address specific concerns and goals, ensuring that it aligns with both parties’ interests.

5th Role – Avoiding Unenforceability:

Lawyers can draft a prenup that does not contain any clauses that are unenforceable under the law, which reduces the risk of future legal challenges.

6th Role – Providing Independence & Objectivity:

 Having independent legal representation for each party helps ensure that the agreement is negotiated fairly, and that each party’s rights are protected, which will help the prenup hold up in court if it is challenged.

7th Role – Advising on Future Amendments:

 Legal counsel can also advise on the process for future amendments or revocations to the prenup, which might be necessary as the couple’s circumstances change.

How Can We Help?

The attorneys of Vista Family Law are ready to guide you through the complex legal and financial issues that you must consider when negotiating a prenuptial agreement with your future spouse. We can draft a prenuptial agreement that will be tailored to your specific circumstances and those of your future spouse, while ensuring compliance with applicable laws so that the agreement will be difficult to overturn in case of a future divorce.  Contact us today so that we can provide you with peace of mind and help you build a solid foundation for your future marriage.