Getting married should be a joyous, happy, occasion filled with optimism for the future. Most people do not enter into a marriage with thoughts of the marriage ending in divorce. While no one would hope for a marriage ending prematurely; the truth is that sometimes it happens and there are perfectly valid reasons to be planning for such an occasion. One form of planning is the drafting of a prenuptial agreement. Luckily as time has gone on there has been a significant shift away from the stigma, embarrassment, and negative association of entering into a prenuptial agreement with a future spouse. In fact, it makes sense to have an open honest discussion about finances with your spouse-to-be. A prenuptial agreement has many benefits, including making clear the intentions of the two individuals, and it is a wise way to ensure that your premarital assets and property are protected in the future.
What is a Prenuptial Agreement?
A prenuptial agreement is a contract that is entered into between two people prior to the date of marriage. The purpose of the agreement is to make the intentions of the parties clear as to the division of property and assets, and what will be considered separate versus marital property, at the time of divorce. It is a document that is reviewed by and signed by both parties in front of a notary.
Who needs a Prenuptial Agreement?
Anyone is free to enter into a prenuptial agreement. However, prenuptial agreements can be especially beneficial if any of the following apply:
– Significant income disparities between the parties
– This is your second or third marriage
– You have children from a prior relationship
– You own a personal business
– You own real estate
Benefits of a Prenuptial Agreement
A prenuptial agreement can help facilitate the intention of the parties should the need arise. The agreement benefits the parties additionally in the following ways:
– Protects the respective pre-marital assets
– Mitigates expensive divorce-related litigation in the future
– Insulates you from the pre-marital debt of your spouse-to-be
– Safeguards assets of your children from a prior relationship
– Negotiated in the harmony of pre-marital positivity, as opposed to litigating these issues in the heat of acrimonious divorce
– Provides certainty in the outcome, instead of leaving the division of property to a court later on
– Allows parties to feel protected knowing certain assets are secured
– Alimony can be agreed upon, including whether it will be paid; how much, and for how long
Can a Prenuptial Agreement be Unenforceable?
There are certain types of arrangements that cannot be dictated in a prenuptial agreement. That is a prenuptial agreement cannot include custody or child support arrangements and such provisions would not be enforceable.
A prenuptial agreement may be disregarded as a whole if the following elements are present:
– Fraud: if either party is not honest or forthright, for instance by intentionally not fully disclosing financial assets, i.e. hiding assets, this can invalidate a prenuptial agreement
– Duress/undue influence: if one party threatens or otherwise coerces another to enter into the prenuptial agreement, it may be unenforceable
– Incompetence: if a party lacks the mental capacity to understand or enter into a contract, an agreement may be unenforceable
– Unconscionability: an agreement will be unenforceable if it is extremely one-sided, or one spouse is forced to take on the debt of another while the other party takes on no debt.
How can a KGO attorney help?
The KGO family law attorneys will ensure that the prenuptial agreement is clear as to your intentions, that your assets are protected, and mitigate any likelihood of the agreement being invalidated at a later date. If you need assistance with drafting and preparing a prenuptial agreement, contact the experienced family law attorneys at Krum, Gergely & Oates LLC today for a consultation.