Prenuptial agreements are legal documents that a couple signs before they get married so that they both control the distribution of property and assets in the event of a divorce. It is a preemptive strike that is designed to avoid a costly and acrimonious divorce, because all major financial issues have already been settled.
Wealthy people often use prenuptial agreements to protect the financial assets they have earned prior to a marriage, but these agreements also serve other purposes, such as protecting one party from having to assume the debts of another, and protecting specific assets from being taken by the other party. To ensure that a prenuptial agreement will stand up to legal scrutiny, it is always best to seek the counsel of a family lawyer before signing this type of document.
What To Include In a Prenuptial Agreement
If you’re going to create an effective prenuptial agreement, you need to make sure that you include the right things, so that there are no conflicts in the event of a divorce.
Here is a brief overview of what you can and should include in a prenuptial agreement:
- Shield Your Spouse From Your Debts – In the absence of a prenuptial agreement, creditors may attempt to seek payment from your spouse for your debts. Use the agreement to limit your spouse’s debt liability.
- Keeping Property In the Family – a prenuptial agreement can stipulate that family property, such as heirlooms and businesses, remain in the family.
- Who Gets What In a Divorce – you can list the specific assets that each party will receive in the event of a divorce. This can help you avoid conflict and save time during a divorce, because both sides have already agreed on the exact distribution of marital assets.
- Shield Wealth You Created Prior to the Marriage – if you have significant assets prior to the marriage, and you want to ensure that your spouse doesn’t receive any of those assets in a divorce, you can stipulate that those assets are off-limits in a divorce proceeding.
- Define Financial Responsibilities – you can also delineate how each spouse will handle financial responsibilities during the marriage, such as paying bills or whether you will open joint bank accounts or separate bank accounts. You can also make provisions for how you will file taxes during the marriage.
- Provide For Children From Another Relationship – if you have children from a previous relationship, you can detail your inheritance wishes for them in a prenuptial agreement.
What You Cannot Include In a Prenuptial Agreement
State laws prohibit you from including certain provisions in a prenuptial agreement, such as:
- The Handling of Child Support/Child Custody – these issues are always decided by a family court and cannot be settled in a prenuptial agreement.
- Personal Rules for the Marriage – prenuptial agreements are created to handle legal matters, therefore, you cannot include provisions about your personal preferences regarding common marriage rituals, such as where to spend a vacation or how to deal with your in-laws.
How To Create An Effective Prenuptial Agreement
As legal challenges mount to the provisions in many prenuptial agreements, it is vital that you and your spouse both seek the counsel of a family lawyer when creating this document. It is best to take a ‘separate but equal’ approach to retaining an attorney, which means that you and your spouse should secure different lawyers to ensure that both your rights are fully protected.
The Law Office of Eric C. Cheshire, P.A. has nearly 30 years of experience in family law. Please call us at 561-655-8844 to see how we can help you craft a fair and reasonable prenuptial agreement.