Prenups may have the negative association of a couple presuming the marriage is destined for divorce before rings are even exchanged, but that is not necessarily the case.
There are many scenarios where having such a contract makes fiscal sense, and it can even take additional stress out of the relationship by putting all financial baggage out in the open.
If you are bringing a substantial amount of property into the marriage, you have been previously married or you simply wish to clarify the financial responsibility of each spouse, a prenuptial agreement can help ease a lot of the pre-marriage tension.
The prenup is becoming more popular as people are wait until later in life to get married, which often means they have acquired more separate assets.
Additionally, communal property laws offer little protection to an individual’s possessions.
States with such laws often make the presumption that all property in a marriage is part of the marital estate, and it can take strong evidence to clarify separate from marital property.
While bringing up the topic of a prenuptial agreement is neither sexy nor romantic, it doesn’t have to be as awkward as it seems.
Having an open conversation about finances prior to marriage is important since trust is critical, and once married, you are both in it together.
Getting any skeletons on the table before taking the big step into marriage could help prevent many major marriage problems from occurring in the first place.
However, with divorce rates sitting at roughly 50 percent, it is naive not to consider splitting up as a possibility at some point in the future — everyone who gets married likely feels theirs will be the one that lasts, yet half of the people who are so sure end up getting divorced.
Drafting a prenup doesn’t mean you will try any less to make your marriage beat the odds; it just makes sense to prepare for an outcome that is statistically around the same as the toss of a coin.
Prenuptial agreement recommendations
While people with large amounts of property are still the most common group to utilize prenuptial agreements, they can make sense in many different situations.
It is often practical to create a formalized arrangement before marriage if there is a financial imbalance, such as one spouse having a large trust fund or if there is something they would like specifically separated.
If one spouse has property they wish to protect or the other person has significant debt, a prenup can be very useful in settling any remaining tensions prior to marriage.
Some couples may also prefer to keep their finances mostly separate during the marriage by keeping separate bank accounts or splitting the bills but keeping their own income. Formalizing such an agreement can prevent conflict if the marriage eventually ends.
Additionally, it is often highly recommended for those remarrying after a previous divorce to consider a prenuptial agreement.
People in these situations often have more property, a better understanding of the challenges marriage presents and sometimes have children from a prior marriage that require consideration.
Prenuptial agreements can clarify what property was separate before the marriage and set basic provisions outlining what would presumable be best for children, such as split parenting time or general child support arrangements (note that issues pertaining to custody may not always be enforceable).
These agreements can be taken into consideration by the court in case of eventual divorce.
Although you can write your own prenup, it is definitely recommended that you have a professional attorney experienced in prenuptial agreement preparation write the document for you.
It is critical that the agreement has all of the necessary language to make it enforceable by a court, so be sure to find an attorney familiar with your state’s divorce laws.
Many attorney’s will charge a flat rate for drafting a prenup and some may charge their hourly rate, but either way, it will save you a lot of money on court fees in the long run if your marriage ever comes to divorce.
You also want to give plenty of time for the other party to obtain their own counsel and review the document. Prenups are commonly overturned when one side quickly signs it without thoroughly reviewing the document or having their own attorney present.
They can later claim to have been coerced and didn’t realize what they were signing. It is best to have the other party initial each page, and return the draft with any proposed revisions to be assessed by your own lawyer.
Another issue is if the court finds the prenup to be incredibly lopsided, such as one spouse keeping all marital property and leaving the other with nothing.
A prenuptial agreement should be used to create a sense of fairness, not as a tool to get more than your fair shake.
No matter your financial situation, consider discussing whether a prenuptial agreement would be beneficial to your marriage. An honest conversation shouldn’t hurt, and it may go a long way to preventing future troubles.
Mat Camp is a former Lexicon Services Online Editor, who focused on providing a comprehensive look into all aspects of the divorce experience. On MensDivorce.com, he concentrated on issues, such as parenting time, custodial rights, mediation, the division of assets, and so much more.
Mr. Camp used the wealth of experience of Cordell & Cordell attorneys to bring tangible answers to reader questions in Ask a Lawyer articles, as well as offer a step by step process through the divorce experience with Cordell & Cordell Co-Founder and Principal Partner Joseph E. Cordell in Divorce 101: A Guide for Men.
Mr. Camp used thorough research to highlight the challenging reality that those who go through divorce or child custody issues face. He helped foster the continued success of the Men’s Divorce Survival Guide, the Men’s Divorce Podcast, and the Men’s Divorce YouTube series “Attorney Bites.”