The man I want to marry has asked me to sign a prenuptial agreement before we get married. He owns a truck company with 40 trucks and is making good money. He has two children by his first wife. Do you think I should sign it?
Jennifer W., AL
You have not told me anything about the prenuptial agreement (prenup); what it contains, the events that cause it to become active or how long it lasts. Without more information I am unable to help you decide. However, here are some basics about prenuptial agreements for you to consider.
Prenups are contracts and are guided by contract law. Contract law, simply put, is an offer and an acceptance with consideration given by both parties. There are volumes and treaties on contract law that can take up an entire library floor and they vary from state to state but the majority of contract law is settled law.
They are used to manage the property rights of the individuals both while living and after death while wills become active upon death. Prenups become active upon a certain event, such as divorce or death.
Most states allow spouses to share ownership of property acquired during the marriage, receive your property upon your death, share any debts occurring during the marriage and even share in managing property acquired during the marriage. Prenups specifically address the individual property and property rights to assets held by the individuals before the marriage, hence the name Prenuptial.
Prenups can protect one party’s assets, protect from assuming the debts of the other party, determine how property will be passed upon death, clarify financial rights and responsibilities during marriage and avoid long and costly divorce disputes. One very good reason to have a prenup is if you have children from a prior marriage and you want your property to go to those children rather than your current spouse. That way grandma’s farm can go to her grandchildren rather than your spouse she never had a chance to meet; the keep it in the family idea. Prenups can even keep a family heirloom, family business, property or future inheritance in the birth family
Prenups are contracts so they can cover just about anything you can legally do. You can have them say the marriage must last 10 years or the spouse gets nothing or just a nominal amount. You can require the spouse not be a spendthrift, reach some reasonable financial goal. But very important is they can limit your debt liability for the marital property. Creditors can go after the marital property even if only your spouse owed the debt if there is no prenup.
Prenups/contracts are wonderful things and the courts will enforce them if they are reasonable, fair and meets state requirements. If a spouse was coerced into signing the prenup then the court will invalidated it. However, you need to realize the prenup must meet all the state requirements which means you need to work with an experienced family law attorney to draft and finalize your prenup.
Each state has its particular laws regarding types of property such as separate and marital. Without a prenup the state laws will determine how the property will be split, but a prenup can determine how and which property goes to each party. Some states allow you to predetermine alimony, if any, but make sure you check with a family law attorney before you sign any prenup.
Some reasons to have a prenup are to keep separate business, retirement benefits, income, deductions, and claims for filing your tax returns, managing household bills, expenses and bank accounts, and settling potential disagreements such as suing mediation or arbitration in the event of divorce.
You cannot have a prenup covering anything illegal, decide child support or child custody, encourage divorce, or make rules about personal rather than financial matters. Courts will not enforce rules about personal matters such as child rearing, where to go for the holidays, etc.… If you want that type of decision on paper make sure it is not in the prenup but in a separate document.
Prenups are ruled invalid when there is no written agreement; it must be in writing to be valid. If it is not properly executed; both parties must sign the agreement before the wedding. If you were pressured to sign it. If you didn’t read it, or had no time to think it over. If it contains false or incomplete information as to the parties income, assets, or debts. Both parties should and in some states must have independent counsel to advise them. If it is unconscionable in the way it divides the assets of the marriage and one party faces severe financial hardship while the other prospered, the court is likely to hold it invalid. Failing to include important property in the prenup is sufficient may result in losing that property for failure to disclose. That could mean you could lose a vacation home or Aunt Nellies painting if you do not include it in the listing of the property.
Remember that the laws for prenups change from state to state and you sure don’t want your property to go where you don’t want it to. So make sure you use an experienced family law attorney to prepare you prenup or you could find grandma’s farm going to the son-in-law she never met and her own family losing out on the farm.