Prenuptial and postnuptial agreements are a growing trend for couples who wish to define the legal rights and obligations that will arise out of their marriage.
While prenuptial agreements were once considered unromantic or only necessary for the very rich, they are becoming more commonplace as couples find they offer two benefits for anyone getting married.
First, prenuptial agreements are a form of insurance—prudent planning that is hopefully never needed. While you never want your house to flood or catch fire, don't you still insure against those possibilities?
The second benefit comes from the process of crafting a prenuptial agreement, which requires open and frank conversations between the future spouses, not only about finances, but about their goals and fears for the marriage. Those discussions can make a marriage stronger than it would have been otherwise. Creating a prenuptial agreement can be a vaccination against marital problems that might have developed down the road.
Who should consider a prenuptial agreement?
While there may be benefits for any couple, you should strongly consider a prenuptial agreement if:
- You own (or are a partner in) a business, medical practice, law firm, or professional corporation;
- You are in a career or business that is, or is likely to be, extremely successful;
- You and your spouse are entering the marriage at different “stages” (e.g. if you have children and they do not, or if you are nearing retirement age and they are still working);
- You have significant assets such as real estate, trust funds or investments;
- You have much more money (or much less debt) than your fiancé;
- You will be supporting your spouse while he/she attends school.
The technical requirements for enforceability are simple. A prenuptial agreement must be in writing and voluntarily signed by both parties. Each person should be represented by their own attorney and there should be a mutual disclosure of assets. Hiding assets may render the agreement invalid later.
Parties should openly discuss and negotiate the document well in advance of marriage. The earlier the prenuptial is signed before the marriage, the easier it will be to enforce the agreement later.
Ambushing your fiancé with an agreement prepared in private or signing on the church steps are not only tacky actions, they could make the agreement invalid.
All marriages are contracts, but usually most of the terms are tacit or negotiable. Prenuptial agreements make some of the terms explicit and they can be as flexible or complex as the couple would like. Many agreements are exclusively financial, but others cover a wide range of issues, such as who will be allowed to make certain decisions (such as decisions related to children from previous relationships) or even who has to wash the dishes or how the couple's record collection should be divided. Whatever terms and issues are important to the couple can be included in the prenuptial agreement.
Prenuptial agreements should also contemplate what should happen if either person were to die. May the survivor stay in the house? How much support should be ordered? Will the survivor be entitled to the elective share of the decedent’s assets?
A prenuptial agreement sets out the roadmap for a marriage. Marriage planning is complex and requires significant attention to detail, but the creation and dialogue can be a fruitful and even fun exercise between you and your future spouse.
At Stahancyk, Kent & Hook, P.C., we can assist you in making informed choices when facing some of the most important decisions in your and your children's lives. Our attorneys can help you determine a plan to successfully navigate the issues facing you. Click here for new client information.