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Do You Need a Prenup for the Second Time Around?

Friday, 22 February 2013

prenuptialAnyone who has been through a divorce knows exactly what they would do differently next time, but sometimes a prenuptial agreement seems a little excessive. If you’re considering taking the plunge for a second time, you may have older children, aging parents and various investments. It is wise to consider whether you need to protect your interests with a prenuptial agreement.

What is a prenuptial agreement?

At the risk of taking all the romance out of a pending marriage, a prenuptial agreement is a contract that is entered into between two parties before they get married. Also known as a “prenup” or “premarital agreement,” it is called a marriage contract in Canada. In most states, prenuptial agreements were deemed invalid and against public policy until the 1980s, at least to the extent they pertained to separation and divorce, because they were believed to encourage divorce. Because most prenups allowed a husband to avoid his legal obligation to support his wife, they were only valid to the extent that they pertained to a spouse’s death.

What is included in a prenuptial agreement?

Generally, a prenuptial agreement sets forth how the marital assets will be divided in the event of divorce or either spouse’s death. It can also address what assets remain the separate assets of each spouse and what happens to the appreciation in value of the separate assets. The same can be applied to the debts incurred by a spouse prior to marriage.

Although there are limitations in many areas, prenuptial agreements may also cover issues of spousal and child support. The spouses can agree not to contest any estate-planning documents prepared by the other spouse and to give up certain statutory rights upon the death of one spouse. They can also agree to file joint or individual tax returns during the marriage.

Many couples will use a prenup to cover other issues that arise during a marriage, including the religious upbringing of their children, the division of household duties and how their finances will be handled. Most attorneys discourage clients from including such provisions since a judge would have no means to enforce them. Plus, if a judge believes the provisions are too unusual it could render the entire agreement invalid.

What are the limitations of a prenuptial agreement?

In general, the parties can agree to anything that is not against the law, but a contract that encourages someone to divorce still opposes public policy, and such language could invalidate the agreement.

The parties must fully disclose their assets and liabilities to the other party. Otherwise, one spouse could be signing away rights to an asset they know nothing about.

In some states, it is illegal to limit or eliminate spousal support in a prenuptial agreement. Conversely, a prenup could be invalidated if the amount of spousal support is too high, since that could be construed as “encouraging divorce.”

Prenuptial agreements cannot limit the amount of child support to be paid, at least not to an amount that is lower than the law would provide.

Any premarital agreement pertaining to child custody or visitation will be considered invalid.

Another unique circumstance with prenups is the timing of the agreement. Judges have been known to deem an agreement void when they believe there was misrepresentation, fraud, duress or coercion. For example, if the groom takes the agreement to the bride and asks her to sign it on the night before their wedding, she could argue that she signed it under duress or coercion. Lawyers will encourage their clients to sign the agreement at least 30 days before the wedding to avoid this, or before the invitations are mailed to guests.

Benefits of prenuptial agreements

Once thought as something designed for the wealthiest couples, prenuptial agreements are becoming surprisingly common. They are particularly helpful in second marriages, where one or both spouses own businesses and investments that are to be passed on to adult children. Also, if one party has a deceased spouse, he or she will want an agreement that ensures the assets they received will go to their children.

Some of the benefits of a prenuptial agreement include:

  • Providing for what happens in the event of divorce or the death of either spouse;
  • Protection for children from a prior marriage;
  • It is prepared when the couple is in harmony rather than when the relationship is contentious;
  • The parties have the benefit of negotiating the terms of a settlement; instead of assigning a judge to apply state laws governing the couple’s assets.

As unromantic as a “prenup” may sound, it can be a great way for couples entering a second marriage. Most couples find it easier to deal with certain financial issues upfront, before they tie the knot, rather than entering a marriage without this assurance. A Colorado Springs family lawyer can help craft an agreement and answer any questions you may have.

Photo courtesy of Tom Clare / FreeDigitalPhotos.net

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MPatMarrisonFor over a quarter century, we have helped people during what is often the darkest time in their lives. Divorce is not easy even under the best of circumstances. For most people, family is central. Having something go wrong in the family can have a ripple effect that extends beyond the home and into other areas.

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