Pre-Nuptial And Post-Nuptial Agreements
Whether this is your first marriage or second marriage, if you are entering the marriage with any assets, it is wise to consider premarital planning. Often a topic that gets ignored is the topic of pre-nuptial and post-nuptial agreements because they think that the negative outcome of divorce is being contemplated prior to the marriage. But, looking at the topic through another lens could lead one to conclude that addressing this topic is actually a positive proactive way to discuss financial and legal matters that are important to you. You will have a mutual understanding of these issues and have a framework to avoid issues later in the relationship.
For example, often if you are in a second marriage, or if either you or your spouse have children from a prior relationship, it is particularly important for you to have a solid estate plan because you could potentially unintentionally disinherit your children. So, you may want to a create a prenuptial agreement that ensures that those children will receive your assets upon your death. A prenuptial agreement, along with a carefully drafted will or estate plan, can carve out “non-marital property” that belongs solely to you. If you die before your spouse, these documents can override the state’s inheritance laws that would give those assets to your surviving spouse. Being proactive can make sure your children will not have to rely on the good will (good heart) of their step-parent to receive their inheritance.
A pre-nuptial agreement is a contract between you and your spouse. The key is to ensure that you are creating a valid contract.
- Make sure that each of you has the opportunity to obtain your own separate legal representation since your interest may be adverse.
- Both of you should make a complete financial disclosure.
- Sign the agreement well in advance of your wedding date, to avoid the appearance of signing the agreement under distress.
- Make sure that the agreement is in writing signed by your future spouse
*Note: Custody of Children and Prearranging Child Support Payments can NOT be addressed in pre-nuptial agreements.
Additionally, while it may be easier (chronologically) to have the discussions and enter into an agreement prior to getting married, remember that the pre-nuptial agreement, is simply that, an agreement. Couples can enter into valid agreements anytime during their relationship. Therefore, you can likewise enter into a post-nuptial agreement if you did not address particular issues before the date of your marriage. It is not too late.
*Note: At Davis Family Legal Group LLP, we will only draft prenuptial and postnuptial agreements that are part of a Will Based Estate Plan or part of at Trust Based Estate Plan. Otherwise, we will refer you to premarital mediation or marital mediation where you can meet with a neutral third-party mediator who will address the topic of pre-nuptial and post-nuptial agreements within the grand scheme of your relational situation.