How to Make a Fair Prenuptial Agreement Involving a House and Children From a Previous Marriage

By Beverly Bird

In most states, anything you own prior to marriage is legally your sole and separate property. Your spouse can’t touch it in the event of divorce. However, it’s easy to undo this protection under the law. If your spouse contributes financially to the upkeep of a home you owned before you got married, most states will award her a portion of its equity if you later divorce. Some reasonable budgeting and a properly drafted prenuptial agreement can prevent this. All states recognize prenups.

In most states, anything you own prior to marriage is legally your sole and separate property. Your spouse can’t touch it in the event of divorce. However, it’s easy to undo this protection under the law. If your spouse contributes financially to the upkeep of a home you owned before you got married, most states will award her a portion of its equity if you later divorce. Some reasonable budgeting and a properly drafted prenuptial agreement can prevent this. All states recognize prenups.

Marital Home

If you want your prenup to be fair, it should mimic the laws in your state. For example, if you owned your home before marrying and if you and your spouse live in it during your marriage, you should not ask her to contribute financially to mortgage payments, taxes, upkeep or repair. If she paid any of these things without a prenup, the law would give her a stake in your home. You can use a prenup to declare that if you divorce, you and your spouse agree that your home is not marital property and subject to property distribution. However, it would not be fair to ask her to contribute toward your sole investment in spite of that. You can arrange your budget so her income pays for utilities and other such household expenses while you handle the actual costs of paying for and maintaining the house.

Protect your loved ones by a legally binding will. Make a Will Online Now

Your Children

A prenuptial agreement can also protect your children from a previous marriage in the event of your death. You can use both a prenup and your will to state that anything you owned before you got married should go to your children. Your spouse can waive any right to that property in a prenup so there's no confusion about what the two of you intended. If you die without a will, depending on the probate laws in your area, your spouse might conceivably inherit half of everything you own. Your children from a previous marriage would receive only 50 percent of your premarital property's value. Having both a will and a prenup can prevent this. However, in many states, if your will leaves your spouse very little, and you’re more generous in your prenup, the prenuptial agreement would supersede your will and prevail.

Other Options

If you’re very concerned about keeping your premarital property separate so it can only pass to your children when you die, you can also protect it by placing it in a revocable living trust and naming your children as the beneficiaries. This takes it out of your estate so it can pass directly to them without going through probate. For optimum fairness, you should mention the trust in your prenup so your spouse is aware of the situation. Most state laws will only uphold a prenuptial agreement if both spouses have made full disclosure regarding their assets.

Protective Laws

Most states have laws to prevent prenuptial agreements from imposing an unfair burden on either spouse. If you propose something in your prenup that is grossly unfair, it’s possible that a court will not honor it. Some states mandate a waiting period between the time you give your spouse a prenup to sign and the date she does so. This guarantees that she has ample time to digest its terms and to be sure she agrees with them. If she’s pregnant at the time she signs it, some states may declare the agreement to be invalid. Some jurisdictional laws require that both spouses give the prenup to independent attorneys to review for fairness.

Protect your loved ones by a legally binding will. Make a Will Online Now
DIY Prenuptial

References

Related articles

The Challenges to Prenuptial Agreements

You may have heard the expression that a check isn't worth the paper it's printed on if the signer doesn't have any money in his account to cover it. A similar premise can apply to prenuptial agreements. A prenup is a contractual agreement entered into between potential spouses prior to marriage, ironing out details of property ownership, inheritances and financial responsibilities in advance of the wedding. If an agreement doesn't meet the letter of the law in the state where it's entered into, it may be worthless.

Can a Prenuptial Agreement Be Voided?

When your marriage is disintegrating and you suspect divorce is looming on the horizon, it can be a big comfort to know that you and your spouse had the foresight to sign a prenuptial agreement. Unfortunately, prenups don't hold up in divorce court 100 percent of the time. Judges can and have thrown them out when certain aspects are in flagrant violation of the law or public policy. If you changed your mind about your agreement after you signed it, you might have voided it as well.

Spouse's Rights to Property Owned by the Other Spouse Prior to the Marriage

Identifying a spouse's separate or non-marital property is one of the more complicated aspects of divorce. While hard and fast rules do exist regarding the other spouse's right to a share of such assets, they tend to be subject to a host of exceptions and other rules. Premarital property usually belongs wholly to the spouse who brought it into the marriage and the other spouse has no right to it – unless certain other factors exist.

LegalZoom. Legal help is here. Start Here. Wills. Trusts. Attorney help.

Related articles

Divorce When Your Spouse Owns Everything

If you live in a community property state, the law makes it almost impossible for your spouse to own everything. Half ...

What Are the Benefits of a Prenuptial Agreement?

Suggesting a prenuptial agreement with your intended spouse can drain the happy anticipation right out of your wedding ...

The Validity & Prudence of a Prenuptial Agreement

Prenuptial agreements may not be terribly romantic, but spouses who enter into one are often awfully glad that they ...

Which Is Stronger, a Will or a Prenuptial Agreement?

Wills and prenuptial agreements are both made stronger by the existence of the other. Successfully contesting either ...

Browse by category