Anyone who’s ever gone through a nasty, litigious divorce has probably thought to himself or herself: “I wish I had signed a prenup.” You’ve probably heard the term thrown around in gossip magazines and entertainment shows, but may be wondering what a prenuptial agreement is and what it does.
A prenuptial agreement is a contract entered into prior to marriage by both spouses, which specifies how property will be divided and spousal support will be allotted should the marriage end in divorce. Basically, it sets the terms that would normally be drafted after the marriage ends. So rather than have a court decide who gets the china and what alimony should be, the two people getting married decide what would happen in the eventuality of a divorce, removed from the anger and acrimony of en ending marriage.
In the US, all 50 states and Washington, D.C., recognize prenuptial agreements, as long as those agreements conform to the following standards:
- The agreement must be in writing.
- The agreement must have been voluntarily signed by both parties and cannot be the result of duress.
- The agreement must not be unconscionable (that is, it cannot be patently unfair to one party).
- It must have been signed by both parties in front of a notary.
- It must have been written with full disclosure to both parties.
Advantages
Obviously, the main advantage of the prenuptial agreement is that it provides a template for property division and alimony in case the marriage ends. It is a rather pragmatic solution to the problems inherent in marriage. They can severely limit a spouse’s claims to alimony and property rights, assuming the prenuptial agreement was executed correctly. It can be very difficult to invalidate such a document.
Disadvantages
When you get right down to it, it’s the pragmatism of the agreement that can make the prenuptial agreement rather unattractive. It can be seen as a sign of bad-faith when one spouse suggests a prenup, as it can be seen as suggesting a lack of faith in the other spouse. Additionally, prenuptial agreements, should they not conform to the already stated standards, don’t hold much water. A court can dismiss the statements of an improperly drafted prenuptial agreement. For this reason, it is beneficial to have a lawyer draft the document.
For more information about prenuptial agreements, visit http://www.kleinattorneys.com.
