Prenuptial agreement what protections are offered?
Although many couples are entering their second or third marriages, it is still quite uncommon for couples to have a prenuptial agreement. In fact, in a poll conducted several years ago by Harris Interactive it was found that 4% of married people have a prenuptial. This is even true in states such as Texas and Florida which have a high divorce rate.
So what is a prenuptial agreement? It is an agreement about how financial issues will be settled after the dissolution of a marriage. The agreement, however, is made in “contemplation of marriage and effective upon the marriage.” It is made in writing and must be signed by both the husband and the wife.
What property can my prenuptial agreement protect?
Generally, a prenuptial agreement is used to protect assets and property. For instance, if you own a home prior to the marriage you can create a prenuptial agreement which protects your rights to that property, including your right to sell or lease the property. This does not mean, however, that your spouse could not be given access to the property during the marriage.
A prenuptial agreement can also outline how property will be distributed or money will paid if certain actions occur such as a cheating spouse. Or how the spouses will conduct their personal business such as where they can live or work if the marriage dissolves.
But that is not all. A prenuptial agreement can also be used for many actions such as keeping your finances separated, protecting you from your spouse’s debts, providing for your children from other marriages, clarifying roles within the marriage, and ensuring your property is kept within your family. A prenup can also eliminate potential disagreements in the event of a divorce.
Limitations of a prenuptial agreement
The prenuptial agreement, however, does have certain limitations. Specifically, it cannot violate your state’s laws. For instance, if your state specifies that a spouse cannot waive the right to spousal support than your prenuptial agreement (if it has this provision) may be nullified by the court.
The prenuptial agreement also cannot restrict child support payments, child custody arrangements, or child visitation rights. All of these arrangements are determined by the state’s laws and regulations and are decided by you, your spouse, and potentially a family court at the time of divorce.
Prenuptial agreements cannot be used to encourage divorce, and they can be invalidated if one party entered into the agreement involuntarily or if one party did not disclose all of their financial obligations or tried to trick or deceive the other party.
Other nonfinancial matters should also not be included in a prenuptial agreement and should be dealt with in a separate way.
How do I know if I Need a Prenuptial agreement?
No one likes to discuss the possibility of the end of the relationship, especially before it has started. Unfortunately, with multiple marriages and a high divorce rate sometimes having a prenuptial agreement is a good idea, especially if both parties have children or property to protect.
Talk to a family law attorney if you have questions about whether or not you need a prenuptial agreement.