For years, many couples have operated under the mistaken impression that prenuptial agreements (also known as prenups) are for other people. The assumption is that prenups are either too formal, too fancy or too cold-hearted to be used for ordinary couples. People think that creating a prenuptial agreement is unnecessary for an average couple in a place like Mooresville. Some believe that you have to have a lot of money or property worth protecting for it to be worthwhile. Others think prenups are only useful for those with bad relationships who believe divorce is imminent. Thankfully, this thinking has begun to change, with more and more couples understanding the power of prenuptial agreements to help all kinds of relationships.
First things first, what is a prenuptial agreement? A prenup, at its most basic level, is a legal document drawn up to control the rights and responsibilities of a couple preparing to marry. The prenuptial agreement lays out what each person is entitled to (and not entitled to) in the event of separation, divorce or even death. The triggering event for a prenuptial agreement is, as you might guess, marriage. If the couple never ends up getting married, then the prenuptial agreement becomes null and void.
Now that you know a bit more about what a prenup is, it might be worthwhile to discuss the reasons for creating one. A common reason most couples consider creating a prenuptial agreement is to clarify what happens in the event a marriage ends prematurely. It should be noted that this has nothing to do with planning for divorce. The vast majority of couples with prenuptial agreements have no intention of divorcing, they are every bit as in love as everyone else. The point of the prenup is to be prepared should the worst-case scenario occur. Rather than leave divorce to chance and run the risk of battling it out in court, running up large legal fees and creating lots of stress for everyone involved, a prenup allows you to resolve disputes ahead of time, when everyone is still communicative. Prenups help ensure that important decisions are made with clear eyes, rather than in the heat of a painful divorce.
Prenups are important because they allow couples to avoid having a judge divide their property in the event of divorce. The law says that normally, when a couple gets married, all property acquired after that point becomes part of the marital estate and is thus subject to division in the event of divorce. By creating a prenuptial agreement, couples can decide for themselves ahead of time how to divide this property. It is a way to ensure things like small businesses or homes purchased prior to marriage remain the property of one party and do not become joint assets capable of being carved up by a family court judge.
Prenups are most useful for resolving financial questions. Specifically, prenups can be used to clarify each party's right to certain assets. Prenups are also useful for dividing the spouses' share of joint property. Prenups can also limit how much one party or the other spends in the future, for instance, on alimony/spousal support. Finally, prenups are good at protecting inheritance rights for children of a previous marriage, making sure that the new spouse does not cut the children out. In each case, the prenuptial agreement works to create clarity and minimize risk.
Though prenups are very useful legal documents and can accomplish a lot of good, there are limits to what they are capable of doing and there are some issues that simply cannot be resolved in advance. For instance, a prenuptial agreement cannot be used to eliminate one party's premarital debts, forcing them onto the other partner. Secondly, and most importantly, a prenuptial agreement cannot be used to decide issues surrounding children. This means that a prenup cannot decide things like child custody or child support in advance. These questions must be resolved in the event of a divorce and cannot be decided in advance.
Prenups can be quite complicated and it is crucial that they are legally effective. To ensure that your prenup is binding, consider turning to an experienced family law attorney who has dealt with such issues previously and knows what to watch out for when creating a prenuptial agreement. Among other things, a prenup must be in writing and voluntarily signed by both parties for it to be effective. For this to be true, it is important that both parties receive independent legal advice before signing. It is also crucial that there is no duress or coercion directed by one party to force the other into signing. As part of this, prenups should not be put off to the last minute just before the wedding as this can be seen by judges as a kind of coercion. The prenup must also be fair and will be viewed skeptically by a judge if it is drafted entirely to the detriment of one party, even if he or she is willing to sign.
If you are preparing to get married and are interested in creating a prenuptial agreement or have been asked by your partner to sign a prenuptial agreement, it is important to reach out to an experienced family law attorney for assistance and guidance. The dedicated family law attorneys at Arnold & Smith, PLLC have dealt with many prenuptial agreements and are happy to answer any questions you may have. Contact us here or call us today at 704-370-2828 to schedule a consultation.