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Attorney at Law Magazine
Among the most common questions asked of an attorney practicing family law is whether an individual should consider a prenuptial agreement before heading into marriage. As is the case with most questions, there is no single one-size-fits-all answer. Depending on the individual and his or her circumstances, a prenuptial agreement could be a wise investment in time and money. In this article, we’ll share insights into prenuptial agreements for your consideration.
A prenuptial agreement (more commonly referred to as a prenup or a premarital agreement) is a legally binding agreement between two individuals before marriage.
According to South Florida divorce lawyer Rebecca Palmer, “A well-drafted and mutually beneficial prenup can simplify the process by providing clear guidelines for asset division that can lessen the strain of legal fees and emotional stress during separation. The agreement outlines the financial understanding between the two during the marriage and in a divorce.”
The agreement may include instructions for the division of assets and debts, spousal support, and other non-financial clauses.
“A prenup is not an automatic term limit on your marriage; it is just there to provide guidelines if your relationship ends,” Palmer said.
According to Minneapolis divorce lawyer Kathleen Newman, “If you are young, with minimal assets and heading into your first marriage, you may not need a prenuptial agreement. On the other hand, you (or your fiancé) may require a prenuptial agreement if there are considerable assets involved. Additionally, if this is your second marriage and you have children (including adult children) from a previous marriage, a prenuptial agreement may be worth considering for your own peace of mind and estate planning.”
Since couples are marrying later in life, they may have acquired homes or other financial assets that they’ll wish to protect in the unfortunate case of a failed marriage. Today, 15% of married or engaged couples reported having a prenup in place. That number is expected to rise as nearly 40% of 18-35-year-olds have or plan to set up prenups.
“There are two main reasons for millennials and Gen Z choosing to complete a prenup before marrying, the first being that many are getting married later in life, and the second is that a significant number of them are children of divorce,” Palmer said. “Prenups are not just for the ultra-wealthy; people across the financial spectrum increasingly use prenups to prevent a long legal battle.”
While no one wants to believe their marriage may fail, creating a prenuptial agreement may help to guide the couple through separation and prevent the added costs of arguing over assets as they battle through a nasty divorce. The cost of a prenuptial agreement can save money in the long run.
“A properly drafted prenup means you’ll have already resolved common issues that can become stumbling points in divorce negotiations,” said Indiana family law attorney Dana Eberle-Peay. “While you’ll still need a lawyer, a prenup will not only minimize time and costs but also the headaches and hassles associated with going through a divorce.
According to Philadelphia divorce lawyer Thomas J. Petrelli, “Each state has laws surrounding divorce-related issues, such as the division of marital property, spousal support, child custody, and child support. In the absence of an agreement between the couple, these issues are decided according to the provisions of the law. Without a prenup, important issues concerning the financial aftermath of a marriage could be left up to the courts to decide. Couples can thus contract around what a state court would otherwise determine in terms of how they should divide their property.”
For example, “Under Florida divorce law, when a married couple files for divorce, there will be an equitable distribution, which encompasses marital assets and liabilities. Usually, a court will divide marital assets and liabilities 50/50 unless factors make an equal split inequitable,” Palmer said. “Therefore, a prenup is used to gain control of the distribution of assets and liabilities and have an amicable understanding of the distributions.”
Typically, a prenup will allow the individuals to retain what assets they bring to the marriage – assets, family heirlooms, intellectual property, etc.
“A prenup can help you avoid the contention that often arises during the division of assets and debt by deciding upfront what qualifies as marital properly, and the best way to divide it fairly. In most cases, a court will adhere to whatever you decide,” Eberle-Peay said.
Additionally, if one partner has considerable debt, a prenuptial agreement could outline how debts will be divided or managed in the case of a divorce. This can help prevent one partner from being held responsible for the other’s debt that predated the marriage. This is particularly important with the rising costs of education and student loan debt as well as consumer (credit card) debt.
This is also beneficial as the process requires full financial disclosure from both parties. “This prevents possible surprises during the marriage,” Petrelli said. “If one spouse is coming to the marriage with large amounts of debt or has financial obligations from a previous marriage (child or spousal support), the liabilities will be addressed up front.”
Prenups (in some states) can also include “lifestyle clauses” which can cover various behaviors such as infidelity, visits from in-laws, etc.
Prenups can also specify whether one partner will be entitled to spousal support (sometimes referred to as alimony) in the event of divorce. The prenup will outline how much and for what length of time.
In some states, however, like Indiana, “neither child support nor child custody can be addressed in a prenuptial agreement,” shared Eberle-Peay.
Every state has its own rules governing prenups. Generally, a prenup must meet the following criteria to be considered valid, but be sure to consult with a lawyer.
Many states (full list below) have adopted the Uniform Prenuptial Agreement Act (UPAA), a set of guidelines that decide whether a prenuptial agreement will be enforced. The act was first created in the 1980s when more couples were entering marriage and continuing to work outside the home. The act was made to create some cohesion in the expectations for drafting a premarital agreement and what parameters would make it enforceable. No matter the situation, be sure to consult with a lawyer to ensure your premarital agreement is valid and enforceable.
Since its creation many states have adopted a version of the act into their laws (note each state took a different approach to the act). Below is a complete list of the states that adopted the act and those that didn’t.
In most states you can amend or modify your agreement. You can also choose to revoke or cancel the agreement. Both options will typically require the assent of both parties. If you do choose to follow either path, it’s recommended that you seek guidance from a legal professional to provide advice through the legal steps to ensure it is done correctly.
The answer, as with most legal situations, is it depends. “A prenuptial agreement needs to be fair at the time it’s created and must be deemed fair at the time of divorce in Minnesota,” Newman said.
Depending on the length of the marriage, many circumstances may have changed including employment, health, the presence of children. If the couple hadn’t modified the agreement to account for these changes, then it could potentially be contested or changed if deemed no longer “fair” or deemed “unconscionable” depending on the state law.
For example, if the couple hadn’t planned to have children and didn’t account for that in the prenuptial agreement, that will need to be taken into consideration. Similarly, if one partner developed a debilitating illness during the marriage that affects their ability to work and/or requires additional costs, that will need to be considered.
No matter the circumstances, an individual can always choose to challenge the prenup during divorce proceedings. This is not always a straightforward process, however.
In the recent divorce of “Yellowstone” actor Kevin Costner and Christine Baumgartner, she initially tried to fight the prenuptial agreement in an attempt to win more for child support. “Her lawyers advised her to accept the terms rather than risk losing the financial payouts that were already a part of the agreement,” Palmer said. “This is an excellent example of why couples put a prenup in place and why it’s crucial to have an experienced attorney help with the agreement to ensure its enforced should a relationship end.”
Similarly, in Indiana, “the judge may be forced to intervene if a prenup’s terms are unclear and/or if disputes arise about the agreement,” said Eberle-Peay. “Additionally, the court may throw out a prenup if it was signed under duress or was deemed ‘unconscionable.’”
When the document is under examination, the attorneys involved in drafting and/or reviewing the document will most likely need to testify.
Communication is often considered a key element to any healthy and successful relationship. When considering a prenuptial agreement, the earlier you begin the conversation in the engagement (or relationship), the better.
“Many couples are now in long-term relationships for several years before getting engaged,” Palmer said. “It is crucial to address future and current expectations to ensure both parties are on the same page. It is helpful to compare a prenup to an insurance policy for a catastrophic event; it protects both people in the partnership and any future children from the emotional and financial toll of a long, messy divorce.”
By working with your partner to tackle a prenuptial agreement as a team, you will help work toward a healthy marriage. Seek legal advice early on to assess your finances and assets to provide clarity and work toward a prenup that you and your partner are satisfied with and that will be enforceable.
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