Family & Home

What Is A Prenuptial Contract? Do You Need It Before The Wedding?

Getting married is an important step. While no one who prepares for a marriage wants to consider the possibility that you end up getting a divorce, the possibility of you breaking up is important. While the idea of ​​sitting down with your fiance to talk about what should happen if you break up might seem as romantic as a vacation to a sewage treatment plant, talking and making a marriage contract can be one of the best. be mistaken.

It is increasingly common for couples from all walks of life to have a prenuptial agreement in place when they get married. While these legal contracts are primarily used to resolve issues that arise during a divorce, they can also be useful for probate and estate planning purposes, as well as other personal and family issues that may arise during marriage. .

As with most other legal matters, prenuptial agreements are governed by state law, and the laws of each state can differ significantly. Only an experienced lawyer can advise you on what you should and should not include in your prenuptial agreement, and what your specific needs may require. But before you speak to a lawyer or raise the issue with your fiancé (e), there are a few general principles you should know before signing or accepting a prenuptial agreement.

Who needs a marriage contract?

A prenuptial agreement, also known as a prenuptial agreement, addresses several key issues that you will face if you divorce, as well as issues that you might encounter during your marriage. Whatever your personal situation, resorting to a marriage contract is generally a good idea for both partners, regardless of their origin. However, there are certain situations in which prenuptial agreements are particularly useful.

1. People with significant wealth

In any marriage where one spouse is significantly richer than the other, or where one spouse earns significantly more than the other, a prenuptial agreement is a necessary asset protection tool. The divisions of alimony and property after a divorce are key elements of any prenuptial agreement. If you don’t use it, the richer spouse may end up paying a lot more than expected. Using a prenuptial agreement allows the two partners to agree on reasonable terms of property division and alimony while the two are on good terms, rather than having to make an agreement after the relationship. deteriorated.

2. Mixed families

When you get married, you and your spouse automatically get inheritance rights from each other. If one of the partners dies, the surviving spouse is entitled to at least part of the property left by the deceased spouse. Thus, if one of the spouses has children from a previous relationship, the inheritances these children receive could be affected by the new marriage. When you create a marriage contract, you and your partner can choose to limit or waive your right to a marital inheritance, thus preserving any inheritance for your children.

3. Business owners

If you or your spouse owns a business, even a micro-business like an Etsy store, you’ll want a prenuptial agreement to protect your ability to continue to own and operate the business if you divorce. This is especially important if you have a business that involves shareholders, partners, or other property interests, as the terms of your partner or business may require you to create a prenuptial agreement. If you fail to craft an appropriate prenuptial agreement, your spouse may end up with a stake in the business, even if they have not been involved in starting, managing, or growing the business.

4. People with large debts

Once married, you and your spouse combine many of your financial interests. The downside is that the combination of your finances allows creditors to foreclose on your property if a debt goes unpaid, even if the debt is your spouse’s debt and not yours. For example, if your spouse takes a credit card and doesn’t pay it off, your creditors could withdraw money from your spouse’s bank account to pay off the debt.

However, with a prenuptial agreement, you can specify which property will be used to pay the prenuptial debts, determine how debts acquired during the marriage are divided, and specify who is responsible for paying the marital debts. Without these provisions, you could be forced to pay debts that v

5. Families

For couples planning to have children or mixed families planning to have more children, the question of who will stay home to care for these children is something you both should talk about. and address in your prenuptial agreement. Staying at home to raise children can negatively impact your career opportunities and your ability to earn an income. It is also a factor that the courts will take into account when answering questions about support.

Previous requirements

Marriage contracts are contracts. Like contracts, they must meet specific legal requirements before a court enforces their terms. When you create a prenuptial agreement, you and your partner should make sure that the agreement meets the legal standards of the state. If you don’t, a court may not enforce it and may impose its own terms on issues you previously agreed to. Although each state has its own legal requirements for prenuptial agreements, there are common standards:

  • Prenuptials must be in writing. As a general rule, marriage contracts should be in writing. The document should include the terms you want to discuss and both parties should sign it.
  • Prenuptials must be voluntary. You cannot force or coerce someone to sign a prenuptial agreement. There is no one way to determine whether a prenuptial agreement was entered into voluntarily; however, any sign of coercion or compulsion may be sufficient to invalidate the contract. For example, let’s say your wedding is a week away and your partner says they need you to sign a marriage contract this week or have to postpone it. In this situation, the stress of the impending marriage, the possibility that you will have to postpone, and the limited time you have to review the prenuptial terms can lead a court to conclude that your signature was not voluntary.
  • Prenuptials must be accurate. When you sign a prenuptial agreement, you and your partner should be honest about what you own, what you owe, and all of your relevant financial and personal information. You can’t, for example, hide your credit card debt or lie about the type of property you own. While you may not have to disclose all aspects of your past or personal life, you should provide enough information so that your partner can make a reasoned decision on the terms of the agreement.
  • The premarital must be fair. All prenuptial agreements should be right for you and your partner, but figuring out what’s right isn’t always easy. Courts use different standards to determine fairness, but in general you will need to pay close attention to how you approach the division of property and the terms of support. You may need, for example, to create a support clause that adjusts your support payments to your spouse the longer the marriage lasts, especially if your spouse will be considered a dependent and will have no income.
  • Marriage contracts must involve legal counsel. Although this is not a necessary condition, having your own lawyer advise you through the process of creating a prenuptial agreement is a great help in proving that the document is legally valid. Although you can use the same lawyer, it is usually best for both partners to consult their own lawyer before creating or signing a marriage contract.

Prenup subjects

If your marriage ends in divorce, you will need to address several key issues, such as the division of property, marital debts, homeownership, alimony, and child custody. If you can’t come to an agreement, the court will decide these questions for you. However, if you have a prenuptial agreement, you can effectively agree on the terms of the divorce before you get married and hopefully before your relationship becomes so controversial that an amicable divorce is impossible. . The following list contains the terms you can include in your prenuptial agreement.

1. Liquidation of assets

When you get divorced, one of the most important issues you will face is how to divide the property that you and your spouse own. Whether you owned the property before your marriage, acquired it during your marriage, or inherited it, you’ll want to make sure that your prenuptial agreement outlines how you will divide it after your divorce. You can choose almost any system, such as keeping the property you acquired before marriage, and dividing the property you and your spouse acquired afterwards equally.

However, you need to make sure that your agreement covers any property issues that may concern you now or in the future. For example, even though you may not be the owner at the time of drafting your marriage contract, you will still want to include terms on how you will divide the real estate and what that building will be titled. Other issues, such as family heirlooms, pets, or other property issues, also need to be addressed.

2. Personal and marital debts

You can use your prenuptial agreement to distribute debts both at the time of the divorce and during the marriage. For example, if your partner has a large credit card debt before your marriage, your marriage contract may require that you use your income to pay off that debt during your marriage or after your divorce. The deal should also address any other debt issues, such as who is responsible for joint debts, student debt, or mortgages.

3. Alimony

After spousal property and marital debts, perhaps the most important issue to address in your marriage contract is alimony, also known as spousal support. There are many factors you will need to consider when accepting child support, such as your and your partner’s income level, your plans to raise children, the length of your marriage, and any pre-existing child support or family obligations. You will also need to make sure that you are not using the alimony clause as a punishment for spousal misconduct, or in a way that unfairly benefits one spouse at the expense of the other.

4. Marriage finances

When you get married and start sharing your income or financial obligations, you can use your marriage contract to define who is responsible for handling or paying family debts. Your agreement may say who is responsible for paying the mortgage, whether you will keep separate bank accounts, whose income will go into those accounts, how you will save for your children’s retirement or college expenses, etc.

5. Lifestyle clauses

A lifestyle clause is a clause that primarily concerns your behavior or that of your spouse during marriage. Many of these clauses deal with infidelity and what, if anything, will happen if one of the spouses is unfaithful. While you may want to have a piece of paper that immortalizes your right to a large payment from your spouse in case you cheat, you need to approach all lifestyle clauses with caution. Not all courts view these clauses favorably, and many have struck down marriage agreements if the lifestyle clauses were too broad or contrary to public order.

So, if you are considering including some sort of lifestyle clause in your prenuptial agreement, you should talk to your partner and lawyer first. You’ll want to be sure about your goal, agree on a reasonable way to achieve it, and make sure you’re doing it legally.

Prohibited subjects

While you are free to decide what terms you want your marriage contract to cover, there are some topics you cannot include. If your agreement contains any of these prohibited topics, a court may reject these individual provisions or invalidate the prenuptial agreement entirely.

1. Child custody and alimony

When it comes to ensuring that a child’s needs are protected, judges have the final say. Although you and your spouse can agree on child custody and child support terms, the court is not obligated to honor your agreement. If a court determines that its terms are not in the best interests of your child, it will impose its own decisions on each custody and support issue, regardless of what you and your spouse have previously agreed to.

2. Illegal activity

You cannot use your prenuptial agreement to agree to anything illegal or prohibited by law. You cannot, for example, use your marriage contract to divide your interests in your husband’s illegal prostitution business.

3. Alimony exemptions

Most prenuptial agreements deal with child support, and some couples even waive any right to child support they may have. While some states allow one or both spouses to waive child support, this is not allowed everywhere and some courts will override a prenuptial agreement that includes any exemption from child support.

4. Encourage divorce

As a general rule, courts cannot encourage divorce or allow marriage agreements to do so. If your prenuptial agreement includes some type of financial bonus or other incentive for you or your partner in the event of a divorce, it is unlikely that a court will confirm this.

Unique size

There are many pre-made or DIY prenuptial agreements available today. While these tools can be a useful starting point for discussing prenuptial matters, you should not rely on them as legally binding contracts. State laws on prenuptial agreements can differ widely, and a predefined form may not meet the legal standards in your state.

Even if you find a predefined form that complies with the laws of your state, you should make sure that your document matches your personal situation. Relying on a model can give you a false sense of security that your marriage contract is good enough; however, if it is time to use the document, you may find that it is problematic or that you are missing something important.

Solve the prenuptiality problem

If you’re like most people, the idea of ​​talking about a marriage contract with your partner isn’t a pleasant one. Marriage contracts can be one of the less romantic themes, which is perhaps the biggest reason people keep from making one. If you want to use a prenuptial agreement in your own marriage, the best thing to do is to approach the subject delicately.

1. Learn to tackle difficult topics

Marriage usually forces couples to face difficult and often painful issues together. No matter what the future holds for you, it is very likely that you and your spouse will face some issues that can negatively affect both of you. Learning to deal with these obstacles in a healthy and productive way can strengthen your relationship. Approaching the possibility of divorce in a realistic and constructive way can help you prepare for other obstacles in your life together.

2. Include your marriage contract in your financial plan

Developing a financial plan based on your financial goals and those of your partner will naturally lead to a discussion about a prenuptial agreement. A financial plan will not only give you an idea of ​​what to expect in the future, it will also help you decide what you want out of your plan and marriage, as you create it. This future focus is a good introduction to discussing the possibility of divorce and the importance of having a prenuptial agreement.

3. Protect your partner’s future

Prenuptials are a lot like life insurance – you never want to use it, but not having it is risky. If you or your spouse die, life insurance policies will ensure that the survivor is not left without support. Likewise, prenuptial agreements will ensure that your family is protected in the event of a divorce. Trying to maintain a respectful relationship after divorce is especially important if you have children and will also help divide parenting responsibilities. A good prenuptial agreement will allow you and your spouse to end your marriage with as little acrimony as possible. Without one, it can end in a long and costly divorce that does nothing to further damage your relationship.

Last word

A marriage contract is one of the most useful and least used legal tools available to married couples. A good prenuptial agreement will benefit you, your partner and your marriage. Regardless of your circumstances and whether your marriage will last, you owe it to yourself and your partner to at least consider a prenuptial agreement.

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