By Chris Diedling
If you are engaged and planning a wedding, this is supposed to be one of the happiest times in your life. You are soon to be married to the love of your life and your “happily ever after” is all that matters, right? The last thing you want to think about is what happens if you and your future spouse get divorced. However, as much as a marriage is the ultimate, intimate bond between two people who love each other, marriage is also a formal, civil contract between you, your partner, and the State. This civil contract comes with certain rights and legal obligations concerning assets, debts, and finances.
To put it simply, you are signing up for a lot more than “happily ever after” Marriage is a legal commitment involving sharing of property, debt, and the duty of support. The decision to enter into a prenuptial agreement is one that ought to be discussed by every soon-to-be-married couple. This discussion is a crucial planning tool for couples to get on the same page before any issues arise. Rapper Kayne West perhaps said it best about prenups, “It’s something that you need to have because when she leaves your a**, she’s gonna leave with half”
WHAT IS A PRENUP?
A prenuptial agreement, also known as a premarital agreement, antenuptial agreement, or colloquially referred to as a “prenup,” is a written contract entered into by a couple prior to a marriage. This contract establishes the property and financial rights of each spouse in the event of a divorce or separation. A prenuptial agreement determines at least three important questions to be answered in a future marriage termination: 1) How your assets & debts will be divided; 2) How your assets & debts will be categorized; 3) Whether either party will be paying support to the other.
WHY WOULD I NEED A PRENUP?
You may be reading this article with skepticism and have thoughts such as, “if my future spouse and I really love each other, we wouldn’t need a prenup” or that “prenups are only for couples who can’t fully trust each other.” This is a perfunctory and naïve way of thinking. It is so easy to be blinded by love and the idea of “happily ever after” to the point where you never stop to consider the reality of marriage.
Some other common misconceptions and falsehoods about prenups include: “prenups are only for wealthy people,” “I have zero assets going into the marriage, I don’t need a prenup” “a prenup automatically means no future spousal support or alimony,” “prenups show a lack of commitment or faith in the marriage.”
All of these notions are completely false. Many of these myths have caused reasonable, intelligent people to entirely dismiss the whole idea of a prenup when planning their wedding. Some have been lucky enough to never know the consequences of not having one; others wish they would have had a prenup.
I am not trying to rain on your joyous wedding parade in the least. By all means, there is absolutely nothing wrong with being ecstatic about your upcoming marriage! Love and happiness are both real and attainable and you should be thrilled on reaching that point with your soul mate! But, it is equally important to acknowledge reality and plan responsibly for the future. After all, responsible adults commonly plan for life events, both positive and negative, as everyday occurrences. We utilize insurance policies to plan for disasters such as floods, fires, and car accidents, etc. We use estate plans to distribute assets to our beneficiaries after we’re gone. We set up trusts and college funds for our children. We invest and save for the future. Why should a prenuptial agreement be any different? Forget the minimal, temporary discomfort in approaching the subject with your partner. The reality is, at least 50% of marriages end in divorce and that statistic could be increasing according to recent studies.
Wouldn’t you want to be prepared for any event that has at least a 50% chance of occurring?
A prenuptial agreement is not planning for a likely marital failure. Rather, it is a vital tool for couples who genuinely trust each other enough to reach a comfortable agreement on the terms of a separation in the event the marriage does fail. Instead of looking at a prenup as a lack of trust or commitment in a marriage, look at it as an indicator of common sense!
A top-notch family law attorney once told me, “never marry someone you couldn’t stand to get divorced from.” Valuable advice indeed. If you are able to discuss the issues covered by a prenuptial agreement with your future spouse, you are planning for success. After discussing these issues, you and your partner will have a better understanding of each other’s expectations and a lot of future conflict can be avoided.
WHAT DOES A PRENUP DO FOR YOU?
A prenup will serve as a roadmap for an amicable resolution in the context of separation and through all of strife that comes with it. A prenup can save a lot of time, expense, and emotional hardship should a divorce ever occur.
Identify and allocate separate and marital property/debt: The prenup can identify each spouse’s separate property and/or debt and how these assets/liabilities shall be treated if a divorce should occur. You can also decide how marital property will be divided rather than leaving it up to the court to decide through divorce proceedings.
Spousal support considerations: The prenup can be used to guarantee either spouse a minimum amount of spousal support in the event of divorce. A couple can agree on no spousal support, a fixed or sliding amount, payments for a finite period of time or until a triggering event (such as remarriage) occurs. Keep in mind that all prenuptial agreements are subject to a court’s review and if your agreement isn’t fair, the court could invalidate the provision.
Allow children from a prior marriage to inherit separate property: The prenup can ensure that children from a prior marriage inherit their share of your estate when you die. Without a prenup, the surviving spouse may have the right to claim a large portion of the deceased spouse’s property, leaving little to nothing for the children of the prior marriage.
WHAT DOES A WELL-DRAFTED PRENUP NEED?
The most essential factor for a successful and legally valid prenup is full and complete disclosure of each spouse’s assets and debts going into the marriage. Full disclosure ensures that the prenup process is both fair and equitable in the eyes of the court.
Additionally, every valid prenup must be in writing and voluntarily signed by the parties. The prenup must be fair and reasonable and both parties must understand and clearly indicate such understanding of the agreement. Both parties must have had adequate opportunity to consult with legal consul. It is highly recommended that both parties to a prenup obtain legal representation. You will want to contact and attorney to ensure your prenup is prepared and executed in compliance with the law.
HOW CAN I GET A PRENUP?
If you would like to contact Chris to discuss a prenuptial agreement, please call 513-771-2444 to schedule a free 30-minute consultation!