A common scenario family law attorneys encounter is a divorce client who is unaware that all assets, no matter how titled, are subject to division in the case. The client may believe only assets titled in the parties’ joint name is subject to division, or that only assets incurred during the marriage are subject to division. Neither is true. It can be a shock to learn that all assets and debts in a person’s name, and their spouse’s name, are subject to division in a divorce. Many individuals get married without considering what marriage means for their assets and debts in the event of a divorce.
A prenuptial agreement addresses those issues. A prenuptial agreement sets out what will happen to the parties’ assets and debts in the event of a separation, divorce, or death. A prenuptial agreement is not “one-size fits all.” The marrying couple has control of the terms of the prenuptial agreement. There are a few things that a couple cannot include in a prenuptial agreement, including waiver of disability maintenance and any provision regarding custody and child support of a child. Otherwise, the parties have significant control over determining the division of their assets and debts upon separation, divorce, or death.
The execution of a prenuptial agreement prior to marriage normally reduces the amount and intensity of litigation around separation, divorce, or death. There are a few specific circumstances in which a prenuptial agreement can be unenforceable at the time of separation, divorce, or death. For instance, if a party did not voluntarily execute a prenuptial agreement, it becomes unenforceable. However, it is a high burden to prove that a prenuptial agreement was not voluntarily executed.
There are stereotypes about what a prenuptial agreement accomplishes or why someone would request a prenuptial agreement prior to marriage. From a legal perspective, a prenuptial agreement is a smart investment which allows parties to be accurately informed about what could happen in the event of separation, divorce, or death, and allows the parties to agree to deviate from that, if they choose. It also allows parties to make an educated decision about their marriage prior to the breakdown of their relationship. It gives the parties themselves control and more certainty.
If you are getting married, contact the experienced attorneys at Slotegraaf Niehoff, P.C. to discuss the benefits of having a prenuptial agreement.