In general, a pre- or post-nuptial agreement is always a good idea for married couples. If one party to the marriage has substantial assets, and that person wants to protect those assets in the event of a divorce, then clearly a pre-nuptial agreement is desirable. The pre-nuptial agreement is still the best way to protect the other party from seeking financial gains in a divorce that they are not entitled to. If you have a second or a third marriage, and you have children from a prior marriage that you want to protect and make sure that they have access to your assets, then a pre-nuptial agreement is the best way to protect that.
It indicates to the court that these were things that I’ve owned before the marriage, that everybody agreed that in the event of a divorce, I am entitled to maintain and retain those things without a claim of the other spouse. These agreements are effective and are usually upheld in court, assuming that both parties have the opportunity to seek legal advice and that both parties were honest in their disclosure to the other party. A pre-nuptial agreement is a good way to safely keep what you’ve brought into the marriage. That’s always beneficial to people that are most established and that have things when they come into a marriage.
For younger couples, starting out a life, then there could be some downsides. For example, if a young couple enters into a pre-nuptial agreement, and maintains a marriage for a substantial amount of time, everything has changed by the time they get divorced. Possibly one party is making a lot more money than the other party, or they have children together, or they have acquired assets that have only been titled in one person’s name. The downside for a young couple getting married is that they are entering into an agreement that will not even be looked at for many years, at a time where their entire life is different from what it was when they entered into the agreement. This is particularly true when it comes to issues such as alimony.
Take an example of a young couple in their 20s that are just starting out in life. They don’t have any children, they are both college graduates and have the opportunity to accomplish whatever they want to in life. They decide they are going to enter into a pre-nuptial agreement that limits any future alimony. At the time they enter into the agreement, this seems fair.
However, if they decide to have children, one of them might stay at home with the children. In this example, let’s say the wife decides to continue on with her career, and she is very successful going forward, but the husband stays home with the children. He has given up his career because both of them thought it would be better for the children to have one parent stay at home to raise the children. If they get divorced 20 years down the road, we are now looking at an agreement that was written when both parties had unlimited potential and opportunity. Now, one person is out working on their career and doing very well, but the other party abandoned their career to stay at home with the children.
You are looking at an agreement that the court might enforce that says no alimony, even though one party gave up the potential of being financially successful to stay at home with the children. This is a potential downside of an agreement, if it makes no provision for an exception in a case such as this. That is something to look out for. These are agreements that are meant to be enforced many years down the road. The downside is you can’t anticipate what changes you’re going to have in your life. That’s something that you need to look out for.
How Do You Advise Clients In Setting Up A Marital Agreement?
Nobody wants to go into agreement thinking that the marriage is going to end eventually, but this is why a prenuptial agreement is a very emotional issue. Parties are very much in love, they are getting married, and they are excited about the upcoming marriage. They are consumed sometimes with just the wedding itself, with the preparations for the wedding in their mind, and nobody enters into a marriage thinking it’s going to end. Many people don’t want to even think about the possibility of their marriage ending, particularly if they are young and in love.
It’s difficult to express to people the importance of entering into an agreement just at the time that they are thinking about getting married forever. So yes, it is a problem to get people to even come to the table to think about a prenuptial agreement. Even if you get them to the table to think about the terms of the pre-nuptial agreement, it’s difficult to put the people in a mindset that there might be a time in the future that this marriage may be over, and how we’re going to resolve that. It is a difficult emotional issue for people to enter into these agreements just at the time they’re about to get married.
Additional Information Regarding Pre-Nuptial And Post-Nuptial Agreements
The only general advice I would give to people that are considering an agreement is to speak with a well-qualified lawyer who has experience in these issues. Hopefully, that experienced lawyer can give correct advice as to whether you should or shouldn’t enter into a pre-marital agreement, and how you should handle that decision once you made it. I just had a very interesting experience with the pre-nuptial case where I represented the wife who was married to a wealthy man. The pre-nuptial agreement limited her to walking away from the marriage to almost nothing.
After spending probably 6 or 7 hours in mediation, we were able to convince the husband that it was in everybody’s best interest to be able to be fairer with the wife—to give her a substantial lump sum payment to allow her to start her life all over again. This was a lot different from the terms of the prenuptial agreement. In fact, in this case, the husband not only gave the wife a substantial amount of money, which enabled her basically start all over, but actually even paid her attorney’s fees. So, this might go back to the discussion about mediation. It’s always a good thing to mediate even if you have an agreement.
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