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What Does the Law Allow with Prenuptial Agreements?

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 Understand what you can achieve by making a prenuptial contract prior to you getting married. A prenup is a contract that two people sign prior to them get married. Any couple considering getting married can enter a prenup if each of the parties agree to each of its conditions. The primary goal of a lot of prenups is to create rules and guidelines for dividing assets and debts should the couple get divorced. Every state has their owns laws on what you are able to and unable to include in your prenuptial agreement, so prior to you signing it, be sure to check with an experienced attorney in your state to confirm that your contract is genuine.

What Can You Achieve With a Prenup?

It’s common knowledge that the divorce process can be emotional and expensive. For couples that wish to decrease the cost and turmoil that typically come with the legal process, you can include some or all the below particular provisions in your prenup. The primary aspect of a just and genuine prenup is full disclosure—each party should carry out a financial disclosure statement, recognizing all their assets and debts.

Identify and divide individual and marital assets

In divorce, identifying and dividing individual and marital property is a crucial task. Individual property includes assets owned before marriage or acquired through gift or inheritance. Marital property encompasses assets obtained during the marriage. If you can prove ownership before marriage, it remains individual property. Courts split marital property in two ways: community property states divide it 50/50, while equitable distribution states aim for a fair division, not always 50/50. Prenuptial agreements help avoid lengthy disputes over property division by specifying each spouse’s individual property treatment and deciding how to divide the marital estate in advance. This clarity prevents reliance on a judge’s decision in case of divorce.

Identify and distribute separate and marital debts

Money problems often lead to failed marriages. To avoid common pitfalls, include a debt clause in your prenup. Full disclosure is crucial, with both parties providing financial statements detailing assets and debts. Attach these to the prenup, specifying individual and marital debts and their division. Prenups are especially helpful when one spouse brings significant debt. Ensure you’re not held responsible for your partner’s previous credit habits by adding a clause addressing this in your prenup.

Spousal support concerns

Income disparities between spouses are common, with one earning more or choosing to stay home. Depending on marriage duration and state laws, the lower-earning spouse may be eligible for spousal maintenance. These payments can be temporary or long-term, determined by a judge. To avoid uncertainty, include a spousal maintenance clause in your prenup, protecting your financial interests in case of divorce. If you significantly outearn your spouse pre-marriage, consider adding a clause limiting spousal support. However, remember that all prenuptial provisions are subject to judicial review, and clauses may be nullified if deemed unjust or vindictive.

Special considerations should you have children from a prior marriage

If you’re getting remarried and either spouse has children from a past marriage, your prenup should include a clause that is going to guarantee that your children are able to inherit their portion of your estate in the event of your passing, if that’s your intentions. In the agreement, one or both spouses can denounce their right to declare a share of the other’s property at their passing, maybe in exchange for a prearranged amount of assets. It’s vital for you to follow up with your estate planning wishes by devising a will or living trust following the discussion of your plan with a knowledgeable estate planning attorney.

Keep property in the family

When you have individual property that has an item that you are going to want to keep in your immediate family, such as an inheritance or family heirloom, you both can agree that it will stay in your family following a divorce. Should you anticipate an inheritance or other property later, you can also add a clause that specifically conveys future gifts or inheritances. Even though this might be unnecessary, subject to the laws in your state and individual property laws, making these wishes specific and putting them in writing can be wise should you have any concerns about this.

What You Can’t Include in Your Prenup

Whether you create a prenup or not is up to you and your spouse. Nevertheless, even couples with a prenup are going to need to go through the formal divorce process and adhere state laws. There are multiple legal matters that the court (or spouses) are going to need to decide prior to the judge terminating your marriage. Although prenups may include clauses for property and division of debt, spousal maintenance, and possibly inheritance rights, there are many important topics that you are unable to control in a prenup, and you are going to need to address throughout the formal divorce process.

Child custody/ support and parenting time

Divorcing parents can work with one another to decide how to manage child custody and/ or support and parenting time. Nevertheless, the court is going to need to approve your agreement prior to enforcing it, and you are unable to resolve these matters in advance in a prenup. The court is always going to have the power to decide how to apportion child custody and set child support by assessing what’s best for the children at the time the issue comes up. Each state has a particular set of aspects that courts are going to examine concerning custody decisions and to set the amount of child support the non-custodial parent is going to pay every month. When you’re unsure that you are going to be in agreement with the judge’s decision, you might want to think about attending mediation with your spouse prior to petitioning for the court’s assistance.

Day to day tasks or spousal duties throughout the marriage

Couples thinking about marriage may want to add clauses in their prenup that establishes which spouse is going take out the trash, keep the house clean, or handle other non-financial duties. Nevertheless, the law restricts any provision that requires a spouse to finish a function or task in prenups, and it may motivate the judge to take the entire agreement less earnestly. When you’d like to initiate particular responsibilities for each spouse, you can add your wishes in a different document. It’s essential to comprehend that the court is not going to enforce this kind of arrangement, so when either spouse chooses to ignore the clauses, the other doesn’t have much support with the court.

Source:

  1. Melissa Heinig, A. (2020, January 24). Prenuptial agreements: What does the law allow? www.nolo.com. Retrieved July 12, 2022, from https://www.nolo.com/legal-encyclopedia/prenuptial-agreements-what-law-allows-30283.html

 
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