Prenuptial Agreements


I thought prenuptial agreements were mainly for celebrities or wealthy people with a lot of assets until I researched more about them during my transition to handling family law matters.  I now see that pre-nuptial agreements are more like wills than divorce insurance.  The laws of each state have very specific provisions for distribution of property, time-sharing (custody), and child support should the marriage end in divorce in the same way that each state has laws of distribution of property after death.  Wills allow each person to decide for something different than what would ordinarily occur.  Pre-nuptial agreements give the parties more control to decide what should be done if a divorce occurs.

I think people have not fully considered the possibilities for prenuptial agreements.  Here are some possible uses of prenuptial agreements.

  1. Selection of law(s) to apply.

The laws for property distribution differ greatly in each state.  If you move frequently and prefer the laws of one state (or country) over another this allows you to control which laws will be applied.  If the marriage should end, the judge of the state where the divorce is filed will apply the laws of the state chosen in the prenuptial agreement.

  1. Discussion of finances before marriage.

Drafting a prenuptial agreement requires both parties to fully disclose their assets and liabilities (debts) or the prenuptial agreement can be challenged.  Before marrying someone, it is important to know what assets and liabilities he or she has and how they will be handled during the marriage.  Some couples skip this crucial step and simply hope for the best.  It is important to have an honest and frank discussion about finances prior to the marriage.

  1. Discussion of expectations during the marriage.

I recently read a court opinion where the wife initially waived any right to receive alimony if the parties divorced.  The wife was challenging the prenuptial agreement because she decided to quit her job and stay at home to raise the children.  She was working full-time when the parties married and she assumed that alimony would not be necessary because she anticipated having her own paycheck to survive if the parties divorced.  Having a frank and honest discussion of the roles each party will play during the marriage can sometimes only happen when you discuss and prepare for the worst scenario.  Having an honest discussion up front could have save them time and money in litigation.

As you can see there are reasons beyond simply planning for a divorce that make prenuptial agreements a good idea.  If you are engaged or in a serious relationship you may want to consult an attorney to see if a prenuptial agreement is a good idea for your situation.

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