The Prenuptial Agreement: the First and Last Word in Marriage

BY LAWYERS.COM

They say nature abhors a vacuum and I've been watching that principle playing out around me.  Within the same four week period one of my friends announced his pending divorce and another one of my friends announced her engagement.  Although they are at completely opposite ends of the marriage spectrum, they do have one thing in common:  an intense need to look closely at a prenuptial agreement.  One friend needs to make one while another one needs to enforce one.

A prenuptial (or premarital) agreement is basically a document explaining the understanding between two people on how they will handle divorce.  Issues covered can range from division of assets to agreements about the payment of spousal support.  It is essentially a contract, so, generally speaking, as long as the terms are clear and not completely one-sided they have a good chance of being recognized as valid.  Not everyone needs or makes one of these agreements prior to marriage, but it never hurts to know all you can about them before deciding whether you want to get one and what you want to include in it. 

Here are some things you should think about if getting married:

• Amount of Assets and Debt – If you and your intended are just starting out in life and have pretty much nothing in the way of things you own and little or no debt, then a prenuptial agreement isn't as pressing an issue.  However, if you're particular about money or just want things set down in stone in case you get divorced, consider a prenuptial agreement.
• Age – The older you are, the more you might want to consider getting a prenuptial agreement.  Age raises issues beyond death and divorce, including admission to nursing homes and medical costs that should be addressed prior to marriage.
• Cost – Getting married is a costly endeavor.  Prenuptial agreements are not necessarily cheap.  One can run around $1500 and the partners should be represented by separate attorneys.  If you have to make a choice between the wedding you want and the prenuptial agreement ask yourself which you would rather have.  That leads us to the next point.
• Level of Discomfort – This goes way beyond the financial discomfort of a prenuptial agreement to also cover the emotional discomfort.  You probably think your marriage will last forever and, hopefully, you're right!  With that in mind, don't be afraid to be honest with yourself and your partner (which is a good way to start off a marriage!).  If you'd rather have an amazing bash and gamble on not ever needing that prenuptial agreement (roughly a 50-50 chance) then know what you'll be facing down the line if you lose.  If you don't want to deal with the discomfort and legal hassle now, fine, but know that you risk greater discomfort and hassle later.  Some people are gamblers, some aren't.

What if you're on the other side, preparing for divorce?  What should you do with that prenuptial agreement?

• Give it to Your Attorney Right Away – I know, a no brainer, but make sure that everyone is aware of what they're dealing with.  Also make them aware of anything that may have changed since it was drawn up, like an asset that is mentioned that you no longer own.
• Know the Likelihood of Enforcement – Not all terms of your agreement may be honored by the courts.  There are many possible reasons for this.  Make sure you discuss this with your attorney early on.
• Remember, You Agreed to This – You might hate the terms of the prenuptial agreement that you signed.  That's fine, hate away.  Just remember that this is what you agreed to in advance.  Unless you can prove that you were certifiably insane or somehow coerced into the agreement, remember that you can and will be held responsible for what you contracted to do or not do.  It's a tough truth, but face up to your responsibilities.

Divorce is an unhappy subject whether it comes at the end of a long, trying marriage or the beginning of a short, blissful engagement.  A few intense, honest conversations can help everyone immensely.  A prenuptial isn't for everyone, but don't just assume that it's not right for you.  Make an informed decision that you can live with regardless of what happens.

For more information on these matters, please call our office at 305 548 5020.

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