Prenuptial agreements are often placed in a negative light by the media. However, provided that both parties are afforded proper disclosure, these instruments can give a couple the freedom to choose how property matters are dealt with in the event of divorce. In fact, properly drafted prenuptial agreements can help reduce conflict between spouses and family members.
Overview of Prenups
A prenuptial agreement, also referred to as a premarital agreement or prenup, is a contract entered into before marriage that outlines what property will continue to be owned by each spouse separately during marriage and after divorce. Without a prenup in place, most property acquired during the marriage is considered jointly owned, depending on the laws of the state. When spouses divorce, this property is either divided by agreement of the parties or by a judge pursuant to state law. Most states require judges to divide property on the basis of fairness or equally between spouses.
By designating what property each spouse owns separately during marriage, a prenup can be a valuable estate planning tool. If you have children from a previous relationship, the prenup can make sure that you are able to keep property in the family and reduce conflict between relatives. It can also create assurances for your spouse that she will not lose certain property in the event that you pass away without a valid will.
As part of dividing property in divorce, the courts must also allocate marital debts. Prenups can be highly effective in shielding a spouse from debts incurred by the other spouse during the marriage. An example might be if one spouse operated a separately-owned business and personally guaranteed investment loans. Without an agreement specifying who owns what property, the other spouse's property may be subject to collection efforts to satisfy these debts.
After property is divided in a divorce, most states allow each spouse to request spousal support, also known as alimony. This is generally at the court's discretion and based on both parties' needs and ability to pay. Prenups can address alimony by either disallowing it or setting the award. For example, if one spouse plans to forgo a career to be a homemaker, the parties may agree to a permanent support amount in the event of divorce. This can help avoid the uncertainty of a too low or high award by the court.
References & Resources
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