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Should You Enter Into a Prenuptial Agreement?

Posted by attorney Steven Monaghan

Prenuptial agreements perform a variety of functions; however, their main function is to protect assets in the event of a divorce. If you have children from a previous relationship, or if you have a business, assets or property which you would like to protect, a prenuptial agreement may be beneficial to you.

When people fall in love and decide to get married, the last thing they want to do is assume that their marriage might not work out. Sometimes nothing can kill a romance faster than introducing the concept of a prenuptial agreement; however, for some couples, nothing could be more reasonable.

When couples enter into a new relationship with property, assets, and/or a business that took years of hard work and dedication to accumulate, the last thing they want is to risk losing such hard earned fruits of their labor in a divorce. These types of situations are the very situations that warrant a carefully executed prenuptial agreement.

A prenuptial agreement, or premarital agreement, is a contract entered into prior to marriage. The content within each prenuptial agreement is as unique as the people who obtain them. However, in nearly all cases, most prenuptial agreements include provisions for the division of property and spousal support in the event of a divorce. Some prenuptial agreements go so far as to include terms for the forfeiture of assets if one of the parties commits adultery during the course of their marriage.

Whenever an individual wants to have a prenuptial agreement drawn, they should have their own individual attorney represent them to ensure that the agreement is enforceable. Some couples have been known to retain a private judge during the signing, to make sure that neither party was coerced into signing the agreement.

Prenuptial agreements can be a highly effective tool in the event of divorce. If they are executed correctly, they can be very powerful and limit a spouse’s rights to property, assets and alimony. Not only do they determine what happens to assets and property in the event of divorce, but they also determine what happens to them when the spouse dies.

Often times people enter into a prenuptial agreement when they want their assets to go to their children from a previous marriage or relationship if they die, or when they want their assets to go to a certain charity organization. They can act as a will and they can eliminate a spouse’s rights to property, and the right to act as an administrator on a spouse’s estate.

Prenuptial agreements are recognized in all fifty states and the District of Columbia. However, for a prenuptial agreement to be considered valid it must contain five elements: (1) the agreement must be in writing (2) it must be executed voluntarily (3) there must be a full disclosure at the time of execution (4) the agreement must be reasonable and fair (5) it must be executed by both parties and before a notary republic.

The one thing that prenuptial agreements have no power over is issues relating to children produced in the marriage. They cannot regulate child support, custody or visitation issues. If you are venturing down the path of marriage and have confidence that you would benefit from a prenuptial agreement, a seasoned family law attorney will be able to assist you in drawing up an effective agreement. Before making any decisions relating to marriage, please contact a family lawyer today.

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