A premarital agreement (more commonly known as a “pre-nup”) can be helpful for two parties anticipating marriage in the near future. This document—which must be committed to paper and signed by both parties—is meant to offset some of the issues partners may face should they later end up in divorce or legal separation.
What’s addressed in a pre-nup and what’s left out
Most issues that can come up during divorce or legal separation can be addressed in a premarital agreement, including spousal support (how much, how long, etc.); the characterization of property (separate or community); property division; and debt characterization and division. In other words, the premarital agreement is useful for covering most of the key areas of potential dispute should the parties decide to separate.
What the premarital agreement doesn’t address is anything relating to the children of a marriage or domestic partnership. As the courts have determined, the best interests of children can’t be anticipated at the outset of a marriage. All issues relating to children’s needs must be addressed at the time those needs arise.
The terms of a premarital agreement may be altered during a marriage if one party or the other does something contrary to its original terms—for example, the husband brings a house into the marriage but later deeds the property over to his wife or arrange for joint ownership. In legal terms, this is called a “transmutation of asset.” Any deliberate changes to the agreement must be outlined in a written agreement signed by both parties (e.g. amendment or post-nuptial agreement).
What to do before seeing an attorney
Of course, talking about the possibility that your upcoming marriage might fail isn’t a pleasant topic. But if you and your spouse (or partner) decide a premarital agreement is a good idea, don’t wait until you’re in the attorney’s office to start discussing details.
I can’t emphasize this strongly enough. Not only will discussions between you and your partner save money in attorney’s fees, it’s far preferable to iron out any differences ahead of time. This way, when you do meet with a lawyer, you both come in knowing (or at least having a good idea) about how you see the terms of this proposed pre-nup.
However, keep this in mind:.while a premarital agreement is generally enforceable by law, it is not an absolute. Courts can disregard a pre-nup for a variety of reasons. But it is valuable, nevertheless, because when a divorce or legal separation becomes necessary, this document serves as evidence that both parties anticipated and agreed upon certain terms before the marriage took place. In most courts of law, a pre-nup will be given the same consideration as any other evidence submitted in a divorce proceeding.
A final important tip: Don’t make an appointment to initially consult an attorney on a pre-nup a couple of days before the wedding. Most premarital agreements take anywhere from two weeks to several months to prepare, negotiate, revise and then execute and sign. And the law has a built-in, seven-day required window between the time the pre-nup is presented to each party and the time the agreement is signed. Waiting until the last minute to address this topic will only delay your happy event.
Is a pre-nup right for you? The Law Offices of Ian S. Topf offer free consultation in a variety of issues, ranging from family law, estate planning, bankruptcy, and DUIs and landlord/tenant disputes.