Your wedding will bind you and your spouse in love, friendship and, perhaps, in parenthood. In the blush of preparations for your special day, it’s difficult for some couples to deal with the less exciting and sometimes even uncomfortable aspects that your union implies. A prenuptial agreement need not be viewed negatively. It is just one of many decisions you will make as a couple that will strengthen your bonds and ensure your happiness.
A prenuptial agreement is particularly useful when one or both of the couple own a business, brings children into the union from a previous marriage, or has significant individual assets, especially if those assets may appreciate significantly during the marriage. It is also very common amongst elderly people who have accumulated wealth which they do not want “lost” in the event that the marriage is dissolved. It can serve to secure the inheritance of children from a prior marriage, protect what was “yours” previous to your marriage, and ensures that your assets cannot be vulnerable to outside parties. Even a graduate degree, or a license to practice, whose value will appreciate during the marriage, makes it marital property.
The safest way to learn about the options in drafting a prenuptial agreement is to enlist the aid of an attorney. One who is versed in family and estate law and who is admitted to the bar in your state is the best person for the job. Laws vary from state to state and there are intricacies that a general attorney may not know. Albeit the services of an attorney are not necessary for a prenuptial to be legal. Individual states vary on what makes a document legal. An attorney would not only be versed in the law, but also knows the proper way to phrase the agreement so it will be upheld by a court in the event you need it.
Perhaps the best way to approach this subject is with the word “Agreement” in mind. The goal in having a prenuptial written is to make both parties feel comfortable and secure. It is for that reason that it’s best for each individual to hire his/her own attorney. The document that comes out of your consultations and meetings with your attorneys will be binding on both of you. It is a legal document that will hold up in court, if challenged, unless the party can prove fraud or undue duress.
Construction of a prenuptial agreement is a serious and emotion-filled process. Ideally the negotiations should begin six to eight months before the wedding date. The agreement can be signed right up to the wedding day, but because it’s usually such a “hot topic,” it’s best to get it out of the way as soon as possible.
Should a couple divorce, a judge will determine what of the assets are in the marital estate. He or she will value those assets and divide them equitably. In the case of marriages which have endured for many years, that distribution is usually half and half. Usually, it means the ratio of contribution from each spouse. When a couple has a prenuptial, the marital property is defined before the wedding, which oftentimes can avoid very expensive legal battles should they divorce, a benefit to both parties.
Like death and taxes, in some cases, a divorce may unfortunately be the unhappy ending to marriage. Indeed it is because you and your spouse love one another that a prenuptial may be a way of saying “I love you,” by facing something that may happen to you two and by ensuring protection for your spouse from outside parties.
This article is offered as a guide and not as a presentation of legal information. Please contact an attorney for details.