Prenuptial agreements aren't just for the wealthy, and neither are postnuptial agreements. With a prenuptial agreement, you can protect your assets and your family. There are a number of things you can put in an agreement that will protect you and your children in case things go irreparably south.
Similarly, a postnuptial agreement, a document created after you've been married, makes clear the issues that have cropped up since you said, “I do.” Perhaps you want to protect an inheritance you received, or put certain protections in place that shield you from liability if your partner opens a business that encounters trouble, for example.
Prenuptial and postnuptial agreements can benefit anyone—not just the wealthy. You can stipulate how assets should be divided in the event of a divorce. The key is to avoid extremes and to stick to financial issues if you hope to have your agreement deemed valid. Whichever safety net you choose, there's much to consider, so start with this advice.
- stipulate how assets should be divided in case of divorce
- hire an attorney
- place provisions that protect you
- ensure that children from a previous marriage are provided for
- make sure your agreement is valid
- be unreasonable nor unfair
- include any non-financial items
- sign any paperwork under duress or under the influence
- look at this as a money-over-love contract
The way a couple should stipulate on dividing assets varies with their goals. It may be that each person wants to keep what they came in with and split the rest. Another option is each person also keeps what they individually accumulated during the marriage. Perhaps if one party is more monied, the less monied party gets a set dollar amount as a settlement.
You may be so blinded my love that you will be tempted to agree to things that may not be in your interest. Have an attorney who specializes in family law help you through the process. You want an agreement that you're happy with today and in the future.
You can protect yourself and the other party from each other's debt by providing an indemnification to the other, requiring each to reimburse the other for debts each incurred. You can agree during the marriage not to incur joint debts. One way of doing this is to not have joint credit cards. Doing this will protect you from your spouse’s debt, and clearly define what is yours.
You can insure that children of a prior marriage are secure in the event of a divorce by stipulating certain property is not marital, and shall remain the separate property of one party. You can also—prior to marriage—take certain property and put it in an irrevocable trust that, upon the death of the grantor, the child or children receive the funds.
These agreements are only as good as they are crafted and managed. Know the rules. The agreement must be signed by both parties in front of a notary to be valid, and both parties must be of sound mind at the time of signing.
Realize that you must be reasonable and conscionable. You can't stipulate anything you want. For example, the courts will not give a nod to agreements that restrict child support, custody or visitation rights. State laws vary about what you can and can't put into a prenup or postnup agreement. That's a good question to ask your attorney. Furthermore, if spousal support provisions aren't fair and reasonable under the law, they may be set aside and the court will fix the support terms.
If you clutter up your agreement with a litany of non-financial items, like who does what chores or whether you can have pets, a judge may look askance, and not take either of you seriously. Keep your documents to the hard core financials and keep that other business for resolution elsewhere.
Whether you're signing a pre- or postnup, both of you have to be of sound mind at the time, not under the influence of drugs or alcohol or under duress. Do so, and you may as well crumble that agreement because it won't hold up in court.
Traditionally, prenuptial or postnuptial agreements have been treated as a fearful protection of oneself from their spouse because ‘no one is really confident that the marriage will work.’ Instead, either of these agreements should be seen as a labor of love from both spouses in a couple of ways:
1. Sitting down to create a prenuptial agreement will get all past financial matters on the table and make them clearly defined. Since money problems are one of the biggest reasons marriages end, having a prenuptial agreement is an honest and loving action, so both spouses are fully aware of each other’s financial history, and can more easily resolve any financial problems together.
2. Creating a prenuptial and/or a postnuptial agreement shows that both spouses recognize that, at any time down the road, something might happen that could result in the ending of their marriage. Doing so doesn’t mean they doubt their marriage will last—it just means that they understand that bad things happen. Having such an agreement says that neither spouse wants the other to worry about finances if their marriage does come to an unfortunate end in divorce or annulment.
Nobody wants to think that their marriage won't work or that mid-course you will need to make “adjustments.” However, because fights about finance can lead right to the door of divorce, there's something to be said for talking about money from the start—and even later in your marriage—before things deteriorate. You both will know where you stand and have a sense about expectations. Not only do you get clarity, but in the event of a divorce, many issues will be settled. This means less work for your attorneys, and ultimately more money in both of your pockets.