A Prenuptial Agreement is an agreement between prospective spouses, made in contemplation of marriage. The Agreement becomes effective upon marriage. The Prenuptial Agreement should be discussed by the parties well in advance of the marriage. Sufficient time should be permitted to allow both parties to consult their separate legal counsel and to sufficiently consider the Agreement. Otherwise, one party may later claim that the Agreement is unenforceable because it was misleading or signed under pressure. The Agreement is generally unenforceable if it was signed after the marriage ceremony. From a legal perspective, marriage can be viewed similar to a business arrangement. Business transactions should not be entered into without documenting the terms of the arrangement in writing. Likewise, the parties in a marriage should carefully consider how issues will be handled during and/or after a marriage. Without an agreement, the probate court (upon death) or the divorce court will impose an agreement on the parties in those circumstances. Property Rights
A number of issues can be clarified in a Prenuptial Agreement pertaining to property rights. For example, the agreement can specify how property -- previously owned or acquired during the marriage -- will be distributed upon divorce or death. Other items which may be addressed include: - The handling of debts and expenses;
- Rights to inherit from each other;
- Rights to be named as the beneficiary of life insurance or retirement plans; and
- Any other matter regarding the parties' rights and obligations, as long as the agreement does not violate public policy concepts or criminal laws.
Certain Provisions Not Enforceable
Certain Agreement provisions may not be enforceable, such as provisions relieving one party from paying child support or alimony. State law or public policy may prevent a court from enforcing such provisions. Because of differences between the states, the drafting of such provisions should be done in consultation with a lawyer. |