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Prenuptial Agreements

Should They be a Prerequisite to Marriage?

While not exactly the glamorous side of a marriage proposal, the idea of a prenuptial, or ante nuptial, agreement is something that most people about to be married should discuss. In case a marriage doesn't work or one spouse dies before you have a chance to do a comprehensive estate plan, a prenuptial agreement can safeguard assets, protect one party from the other's debts, and make any possible divorce proceedings go more smoothly without unnecessary rancor.

Some prenuptial agreements can cover day-to-day details such as who will pay the mortgage and other bills or how child care is to be handled. Since more couples are signing prenuptial agreements, you need to discuss this openly with your intended spouse. If you both feel a prenuptial agreement fits your situation, you each need to see a lawyer to discuss it further.

Even though more prenuptial agreements are being signed then ever before, it is something to consider only if one of the following applies to you:

• If either of you have children from a previous marriage.
• If you own a business or are involved in a family run company.
• If either one of you have significant assets which you want to keep separate.
• If you are concerned about the amount of debt of the other party.
• If you are giving up a lucrative career to get married.

Once you have decided if you need a prenuptial agreement and what should be in it, the question becomes whether or not it will be valid and enforceable. There are certain essentials to creating a valid prenuptial agreement:

• The agreement must be in writing and executed before the marriage, preferably in front of a notary public.
• Neither party should be put in the position of having to sign the agreement on short notice. If your future spouse confronts you with an agreement on the day of your marriage, it will probably not be enforceable.
• The agreement must be fair and reasonable under all of your circumstances and based on full disclosure by both parties of all assets and liabilities.
• One lawyer cannot fairly represent both parties. Each party to the agreement should have their own attorney to prepare/review the document and answer all of your questions before signing.
• The sooner before the wedding date that you prepare the prenuptial agreement the better it will be for both of you and your relationship.

Either party broaching this subject is likely to be suspected by the other of lack of trust. However, since more then half of all marriages do end in divorce, having a prenuptial agreement should be considered a very practical thing to do and not a doomsday expression of your marriage's chances. In fact, open communication with your new partner could be the best way to start a new relationship.