Legal Guide

Family Prenuptial Agreements

Better Safe Than Sorry

It's a fact of life today that many marriages end before "till death do us part." As a result, more and more couples are turning to agreements before marriage to make it easier on themselves if they choose to divorce at some point. If you're not sure whether such an agreement is for you, read on.

Q. Why are premarital agreements on the rise?

A. While to some extent, the answer might be the publicity given to some high-profile cases, it's also true that more people are getting married later in life. They have acquired more assets and are concerned about protecting them. Couples who have been through one divorce often opt for an agreement because of their prior experience. In some cases, one spouse received their house as part of a divorce settlement, and might want to make sure if the next marriage breaks up, the house will still be theirs.

Q. Who should consider entering into a prenuptial agreement?

A. In general, anyone who brings assets into a marriage, especially if the other person has few assets. Seniors often use prenuptial agreements to waive the elective share of each other's estates, so their children will be left with what they wish them to have.

Q. Aren't these agreements usually demanded by men?

A. Increasingly, it is the woman who wants to make sure there is a plan for dividing assets and making sure she gets to keep what she brought to the marriage. As more women have successful careers and build up substantial assets, they are more concerned about the impact of a divorce on their finances.

Q. Once I sign an agreement, am I stuck with it?

A. That depends on the circumstances. Most cases where the courts have thrown out prenuptial agreements involve situations where one party was pressured into signing or wasn't given necessary information about the other party's finances.

Q. How can I protect myself from being cheated in a prenup?

A. Get legal counsel. An attorney will tell you, for example, that under the law there must be full disclosure of each party's assets and liabilities before any agreement is signed.

Q. Is there anything a prenuptial agreement is not allowed to cover?

A. Yes. Child custody cannot be pre-determined, even if both parties agree. That's to ensure that, in the event of a divorce, the child's best interests come first.

Q. We are doing quite well, but neither one of use brings a huge amount of assets into the marriage. Why would we need a prenuptial agreement?

A. Most prenuptial agreements cover more than just how the assets will be split. They can cover responsibilities like who pays what bills: mortgages, utilities, vacations, for example.

Q. How can a premarital agreement play a role in determining the amount of alimony if there is a divorce?

A. Alimony terms can be set ahead of time. One way is to set dollar values that go up if the marriage lasts longer. Or you can agree that alimony will be paid only for a certain number of years. This can be easier to deal with up front, when there is not the personal bitterness that often accompanies divorce proceedings. As a practical matter, the financial cost of settling these matters in a premarital agreement is much lower than a legal fight.

Q. Is a premarital agreement a sign that a couple doesn't trust each other?

A. No. More and more couples see it as more like an insurance policy -- something they hope they will never have to use, but which can make life go significantly smoother if things don't work out as planned.

Szaferman, Lakind, Blumstein, & Blader, P.C.
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