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What is a Prenuptial Agreement
What is a Prenuptial Agreement?
Whether they realize it or not, every couple enters into marriage with a prenuptial agreement of some kind.
The definition of a prenuptial agreement (or “premarital agreement”) is a contract that a couple makes before marriage. Everyone who gets married has a prenuptial agreement simply because by the time they say “I DO”, a couple has basically agreed to either:
Let their marital rights be determined by default state laws; or
Create a written premarital agreement that allows them to take back control of their marital rights in a way that meets their needs, protects both parties, and eliminates the need to fight over most issues if the marriage does not work out.
When a couple gets married without a written premarital contract, their “prenuptial agreement” is to (i) allow their state’s marriage and divorce laws to control what rights they have, and (ii) rely on an unknown divorce court judge to figure out and decide what is best for them in the unfortunate event of a divorce.
Today, it is increasingly common for engaged couples to enter into a written prenuptial agreement signed before marriage that allows them to take back control of their marital destiny, by negotiating an premarital agreement that protects what is in the best interest for both parties.
To a large degree, the standard prenuptial agreement allows a couple to control their fates in the event of a marital disaster, rather than scrambling to figure out and protect their rights under the default divorce laws of their state.
WHAT GOES IN A PRENUPTIAL AGREEMENT?
The terms of a prenup agreement are very personal. You can find standard prenuptial agreement forms online, and there are guides on how to write a prenuptial agreement. However, in the Real World there is not a “one size fits all” prenuptial agreement template that will work for every couple.
Every person getting married is unique.
Everyone has different goals and needs that can’t be squeezed into a standard prenuptial agreement template.
From a big-picture perspective, the content and terms of marital agreements are generally driven by a couple’s desire to “opt out” of certain default state laws that would otherwise determine their marital rights, but which might lead to fighting in the event of a divorce.
Prenups are essentially written to allow a couple to agree on marital rights and divorce terms that supersede and replace those default state marriage and divorce laws that often force couples to lawyer up and battle it out in court. People who sign a premarital agreement or a postnuptial agreement (signed after marriage) embrace a set of terms that clarify and resolve such important topics as the ones discussed below.
MANAGING SEPARATE PROPERTY
A popular use of a prenuptial agreement is to keep each spouse’s Separate Property separate during the marriage, completely free from any marital claims in the event the marriage is dissolved.
When couples decide to keep their respective Separate Property separate, it typically includes separate property owned prior to marriage, and separate property purchased or inherited during the marriage.
A couple can also choose to keep income and debt resulting from separate property separate, until they voluntarily choose to acquire property and debt jointly as “marital property”.
SET FAIR ALIMONY TERMS
HOW TO SHARE MARITAL PROPERTY
A premarital agreement offers a couple the opportunity to agree on how to divide their jointly owned “marital property” if the marriage does not go as planned.
It is common for couples to enter into written prenuptial agreement that avoids the need to rely on a divorce court judge to decide how to divide their joint marital property. Using a prenuptial agreement to decide how to fairly share marital property avoids the need to ever have to argue about it in divorce court.
For example, a prenuptial agreement might say that in the event of divorce, the spouses divide and share all of their marital property evenly (50/50), except for real estate they buy together, which they share pro rata according to each spouse’s percentage of contributions to the property.
Prenup terms like the above example remove the need to have a divorce court decide how to divide a couple’s marital property, and give each spouse certainty and clarity as to what rights they would have if they decided to divorce for any reason.
It is very common for couples to enter into a premarital agreement under which they completely waive (forgo) the right to receive alimony (also called "spousal support") in the event of divorce.
However, many people do not realize that a prenup agreement can actually guarantee the right to payment of some amount of alimony if the marriage is dissolved, and choose the conditions for payment of alimony (e.g. $50,000 in alimony to a spouse who is unemployed at the time of divorce).
For the most part, a couple entering into a prenup can freely agree to whatever alimony terms make them comfortable to enter the marriage, given their unique personal situation.
Couples who agree on alimony payment terms in their premarital agreement can enjoy peace of mind that enables them to embark on the wonderful roller coaster of marriage with more confidence, optimism and excitement because they know that they will be on the same page during even the toughest of times.
IMPORTANT: There are many other terms that are typically included in prenuptial agreements beyond those three concepts and topics introduced above. The above list of concepts commonly included in premarital agreements is not at all exhaustive, or even close.
Family lawyers and analysts have confirmed that more couples than ever are requesting prenuptial agreements before getting married. Millennials have made prenups the latest wedding trend, and many progressive couples have made considering a prenuptial agreement an essential item on their wedding planning checklist.
DID YOU KNOW? A prenuptial agreement is a private document between a marrying couple, and no one else.
A prenup does not get filed with any local, state or federal agency, and couples often choose to keep the terms confidential.
Examples of Prenuptial Agreement Terms:
Some people want to keep the property they bought before the marriage as separate property, unless they decide to contribute it to the marriage. This happens frequently, like when a couple opens a marital checking account and deposit their separate income to pay for their everyday living expenses.
You can agree to maximum amount of alimony (also called "spousal support") in the event of a divorce. For example, you can agree that either spouse can receive up to $70,000 of alimony if needed at the time of divorce, but only if the marriage has lasted more than five (5) years.
Other couples decide to keep their finances separate throughout the marriage and agree to waive the right to ask for spousal support if they divorce.
If you have children from a prior marriage, your premarital agreement needs to plan around them.
A prenuptial agreement is the most important contract a couple about to marry can have, so trying to adapt a free printable online prenuptial agreement form or prenup sample without the assistance of a competent prenuptial lawyer is certainly cheap, but risky for most people.
Rather than try to figure it out with a prenup template, schedule a free call with a Prenup Pros attorney today and find out more about prenuptial agreements (VA, FL, NY & NJ only). All calls are strictly confidential, and there is no obligation to hire our firm.
DID YOU KNOW? A prenuptial agreement cannot be used to decide terms relating to children that the parties might have together, such as what custody rights and child support obligations they will have if they divorce.
ABOUT OUR LAW FIRM
Our attorneys provide affordable marital agreement services to clients who live or are moving to or are getting married in:
Unfortunately, many marriages don’t have a fairy tale ending. According to analysts and attorneys:
41% to 50% of first marriages end in divorce
60 to 67% of second marriages end in divorce
About 74% of third marriages fail
Responsible adults routinely prepare for disasters as an obvious part of their everyday lives, but they generally protect against catastrophic events that have less than a 5% chance of occurring. With the chances of a “marital disaster” approaching 50% or higher, it might be worth at least considering the pros and cons of a prenup.
A premarital agreement can be drafted to provide for a minimum amount of alimony to be paid to either spouse in the event of a divorce, in whatever amount and for how long a marrying couple agrees. When a couple can agree on alimony terms in their prenuptial agreement, they can get married with peace of mind and confidence because they made a fair deal in advance—just in case things don’t go as planned.
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