Premarital Agreements - FAQ's STAFF PICK

Michael John Apicella

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Marriage / Prenuptials Lawyer

Contributor Level 13

Posted almost 4 years ago. 50 helpful votes

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1

What is a premarital agreement or "prenup?"

A Premarital Agreement (also called a "prenup") is a contract that two people sign before getting married. Its purpose is to define their rights if future events occur, such as a divorce. For instance, with the use of a prenup, people can settle questions of property or debt division, spousal support (alimony), and inheritance rights if the marriage ends because of death, separation, or divorce. It also allows the parties to protect assets that they acquired prior to marriage. Without a prenup, state law will determine these matters. A prenup simply allows the couple to follow their own rules, in as much detail as they wish, rather than have state law apply to certain divorce issues.

2

Is a prenup a good idea?

A prenup and the discussions that go with it can help ensure the financial well-being of the marriage, and hence the stability of the union. Think of it like an insurance policy that you hope you will never need. For instance, a negotiated, fair prenup can provide some reassurance to the wealthier spouse regarding the extent of the financial impact of a divorce. At the same time, it can give the less wealthy spouse some guarantee of his or her entitlement to a property distribution and/or financial maintenance (i.e., "alimony" or spousal support) upon divorce. In the event of a divorce, the prenup typically helps eliminate some of the emotion and resultant disputes that are naturally involved.

3

What happens if I get divorced without a prenup?

Divorcing couples without a prenup will have their assets and debts distributed for them by a judge according to state law, assuming they disagree about such issues during the divorce process. For example, without a prenup, your assets could end up in the hands of your ex-spouse's children from a previous marriage, instead of go to your own kids. Or, assets, including money could go to an unsupportive ex who did little to nothing to contribute to the union, while you worked hard at building a business or profession that eventually became a big success. Getting a divorce without a prenup is like dying without a will. State law will control the disposition of your assets, rather than you.

4

Who uses prenups?

Prenups are used largely by those who are marrying for the second time and have assets from a previous marriage that they want to preserve for their children from that first marriage. Another large category of people who use prenups are those marrying for the first time at an older age. Because they have been in the work force longer, they may have acquired assets that they don't want to lose in the event of divorce. Additionally, some people want their prenup to limit the amount and duration of spousal support that they may be liable to pay without such agreement. Examples of people who use prenups include: high net worth individuals or those may become wealthy due to inheritance or career; property or business owners; those with professional degrees or licenses (these are considered income producing assets for divorce purposes); and people with children from a former marriage who want their children to get their assets, rathr than children from an ex's past or future relationship.

5

What terms can be agreed to in a prenup?

Prenups address real and personal property rights. The parties decide their respective rights to certain property, including the distribution of that property during their marriage or upon separation, divorce, or death. Parties to a prenup may also contract with respect to: (1) each party's rights and obligations in the property of either or both of them, whenever acquired and wherever located; (2) day-to-day practical matters, like whether an automobile is jointly owned, or establishing a joint account for daily living expenses; (3) the right to buy, sell, use, lease, assign, create a security interest in (mortgage/encumber), or otherwise manage and control property; (4) limit or eliminate spousal support upon divorce or separation; (5) making of a will, trust, or other testamentary arrangement; or (6) any disposition of property upon separation, divorce, death, or the occurrence or non occurrence of any other event, as long as the terms don't violate public policy or statute.

6

Can I protect my children, or my future children, in a prenup?

Children, or future children, cannot have their rights altered by a prenup. Thus, you cannot waive child support payments in a prenup. In the event of divorce and a dispute over child support, custody, or visitation, the court will always make a decision concerning those issues depending on the "child's best interests." Parents do not have the right to change that by a contract, such as a prenup. There are other ways to protect the rights of children (or future children), such as through various types of trusts. You should contact an estate planning attorney to discuss those options further.

7

Can my prenup address "commingling" of separate and community property?

Yes. In most marriages, people commingle their assets, thus muddying the water between what is his, hers, or theirs when they divorce. For example, if a person sells some of his/her assets and uses the proceeds to help purchase community property (such as a home), dissecting ownership at divorce can be difficult. As such, possible future "commingling" can and should be addressed in the prenup. For instance, one can specify that any commingling not be construed as a "transmutation" (i.e., change) of property from separate to community. Commingling can be a complex issue. Talk to your lawyer if you have further questions or concerns about this topic.

8

What is considered "separate" property vs. "marital" or "community" property?

Upon divorce, each party keeps his/her separate property if it was maintained separately during marriage (not commingled with community funds). If the parties dispute division, the court divides property in the proportion it deems "just" after considering all relevant facts and law. For example, if you entered the marriage with a house, investment portfolio, or inheritance, and kept those assets separate during marriage, they will be considered your separate assets, not subject to division. Yet, the increase in value in those assets during marriage, as well as any assets purchased with income from your separate assets can be considered community property, subject to equal division upon divorce. Also, income contributed during the marriage to a retirement plan such as a 401(k) would be considered community property. The increase in value of your retirement account during marriage is also community property. If no prenup, the court can give your spouse rights to your separate property.

9

Can my prenup address liability at divorce for debts incurred in connection with the acquisition of separate property before or after the marriage?

Yes. It can and should.

10

When is a prenup enforceable?

Depending on your state, a prenup is enforceable regarding the parties' rights and obligations in either or both of their property if: (1) it is in writing and signed by both parties sufficiently before marriage; (2) it is voluntary and not "unconscionable" (i.e., not so one-sided or oppressive that no person in his/her right mind would sign it without duress, coercion, or fraud); (3) there was adequate disclosure of each person's financial information (and such disclosure was made sufficiently in advance of the wedding date), or that disclosure was waived; (4) the enforcement of the prenup would not essentially eliminate all of one party's marital rights; (5) the agreement was signed sufficiently in advance of the wedding date (preferably 30 days); and (6) the agreement is "fair" and does not leave one of the parties destitute. It's best to avoid frivolous terms, as they can lead to invalidity of the entire contract.

11

Could a prenup mean that one or the other person doesn't trust each other?

No. A prenup is grounded in realism and wisdom, rather than a lack of trust. For older couples who are marrying for a second time, the parties may simply want to protect their children or their high net worth. Younger couples may feel that a prenup will save expense and heartache later if the marriage does not work out. In short, utilizing a prenup is nothing more than intelligent financial planning, and not a sign of distrust.

12

What is a good way to approach the subject of a prenup with my fiance?

Do it as early as possible. The mention of a prenup shouldn't be made shortly before a marriage. In fact, prenups signed shortly before a marriage can later be invalidated by a court if challenged during the divorce. Also, discussing a prenup should come as no surprise if you and your sweetheart have been open with each other as the relationship evolved and became more serious. Let your intended partner know that you believe these agreements are important and that you'd like to discuss the topic. If you're getting married, you should be able to discuss these mature issues. You should also be financially compatible if you want to increase the chance for a successful marriage. If you can't talk about these issues or are not on the same page, one has to question whether you are ready to commit to this person for life, including managing your future wealth together.

13

How much does a prenup cost?

There are boilerplate prenup forms and samples that can be purchased very cheaply online or at bookstores. Yet, you get what you pay for. Do you want to risk your assets or legal rights to a cheap store-bought form without the advice of an experienced lawyer? Depending on whether the lawyer is drafting or reviewing a prenup, the average cost for a lawyer-prepared prenup can be $1,500 to $5,000. The cost can vary depending on the complexity of the finances involved, the length of the agreement, the amount of negotiation necessary to reach an agreement, etc. There may also be additional costs if it's necessary to hire an appraiser to value a business, collectible art, jewelry, or real estate. However, these are not fees you pay to the lawyer, but to an appraiser directly. Attorneys who draft and/or review prenups may request an initial retainer and charge an hourly rate for their services, or charge a flat fee. You should discuss these billing options when you consult with an attorney.

14

Who pays for the prenup?

It is preferable for each party to pay their own legal fees. However, it is not uncommon for the wealthier person to pay the legal fees of both parties. Even if the non-wealthier person's lawyer is paid for by the wealthier partner, each lawyer is legally and ethically obligated to represent only the interests of their own client, regardless of who paid. Either way, the wealthier person who wants the prenup to be enforceable in the event of a divorce will want his/her future spouse to be represented by his/her own independent lawyer.

15

How long does it take to draft and sign a prenup?

The time needed to draft and sign a prenup depends on the complexity of the couple's finances and the amount of negotiation necessary to establish an agreement. It is advisable to allow at least 60 days to negotiate and prepare the agreement. It is also advisable to have the agreement ready for signature, and be signed, at least 30 days before the wedding date. Ideally, one should start the process of negotiating and drafting a prenup at least three months before the date of marriage.

16

Conclusion

Divorce is unfortunately very common in the United States. In 2009, more than one out of every two married couples got divorced. That percentage goes up for second and third marriages. Divorce affects millions of families every year, including children of past and future relationships. A prenup is simply another prudent method to manage one's financial affairs depending on potential future events, just like insurance or other financial planning tools. A prenup is not a sign of distrust or that one doesn't believe the marriage will last. Rather, it is a sign of mature and wise management of one's property and wealth.

Additional Resources

Apicella Law & Mediation Office

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Related Topics

Divorce

Divorce is the process of formally ending a marriage. Divorces may be jointly agreed upon, resolved by negotiation, or decided in court.

Enforcing a Prenuptial Agreement in Divorce

A prenuptial agreement is drawn up before marriage to protect spouses in case of divorce and is meant to make dividing assets easier.

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