Prenuptial agreements are binding contracts that prospective spouses make before getting married. These contractual agreements may cover a multitude of issues that arise during the marriage or in the event of a divorce or separation. Whether to have a prenuptial agreement is a personal decision that should be carefully thought out and prepared with the involvement of both parties.
There are both benefits and drawbacks to having a prenuptial agreement. Prenuptial agreements can help separate and protect your property, create rules for future decisions, and help avoid conflict and expensive, time-consuming divorce procedures. While negotiating a prenuptial agreement can be difficult and unromantic, in many cases it actually strengthens a relationship and urges good communication in your marriage.
Every state has its own laws and statutes that govern property rights after a divorce. Many states divide marital and community property equitably in the event of a divorce or death of one spouse. Others will divide property based on a number of case-specific circumstances. Prenuptial agreements allow you and your spouse to make your own decisions when it comes to dividing your property and assets.
Prenuptial agreements do not only cover issues that occur if you separate or get a divorce. In many cases, prenuptial agreements are drafted in order to establish the responsibilities of each spouse during marriage. There are a number of uses for a prenup, depending on your specific situation. Some common prenup topics may include, but are not limited to:
- Who will pay the household bills
- Agreements about certain purchases like buying a home or starting a business
- Agreements to set aside a specific amount of money for savings
- Agreements about separate or joint bank accounts
- Estate planning
- Allotting income and deductions on tax returns
While prenuptial agreements are a way for couples to form legally binding agreements, some things may not be established in a prenup contract. For example, arrangements regarding child custody, visitation rights, and child support agreements will not be upheld in any state.
Furthermore, many non-financial issues cannot be included in a prenuptial agreement. Personal matters such as decisions about birth control, having and raising children, use of last names after the marriage, and responsibility of pets should be handled separately.
If you and your partner are considering having a prenuptial agreement, it is necessary to seek the help of a qualified family law attorney. An attorney will inform you of the laws of your state, draft your prenup, and help protect your legal rights and interests. Please contact us today to speak with an experienced attorney free of charge or to learn more information about your legal rights and options.
What is the Timeline for a Prenuptial Agreement?
Not everyone needs (or wants) a prenuptial agreement. How do you know if a pre-nup is right for you, a member of your family, or a client? Some
“clues” that a prenup might be in order, if the newly engaged or his/her intended:
- have children from a previous relationship
- are a small business owner (or are planning to start one soon)
- have a real estate or investment portfolio
When I begin working with a client seeking a prenuptial agreement, I help facilitate conversations with their fiancé(e) around how they will handle money in their marriage: will they use their pooled money to pay the mortgage on the ski-house in Tahoe? Will they merge their checking and savings accounts? What about if, somewhere down the line, the relationship dissolves? Do they each want to keep their own retirement, or use California family law to determine how to divide it? I help my client come up with questions and ways of approaching those questions that open up a dialogue with their intended about money.
The next stage is to get a financial “snapshot.” This takes at least twice as long as people expect! It takes about a month for clients to pull together information on all their assets and debts, along with current bank, credit car, car loan, retirement savings statements, etc. The more complicated a client’s financial situation, the longer this stage can take.
With all the information in hand, I draw up a prenuptial agreement that reflects (a) my client’s financial situation, and (b) the discussion that the client and fiancé(e) have had. Once I have a draft with which my client is happy, I send it to their intended and his/her attorney. It is critical that each person have their own independent attorney, or, under California family law, the prenup will not be enforceable. (And why go through all of this to have an unenforceable agreement?!)
Finally, and most confusingly, Texas family law requires a one week “ cooling off” period between when a prenup is finalized and when it can be signed. This means all changes must be made and finalized at least ten days before the big day. (And, personally, I hate cutting it that close!)