Before getting married, protect you and your spouse with a prenuptial agreement
A prenuptial need not reflect one spouse's distrust of the other. Rather it should be viewed as one spouse's protection of the other. Keeping separate property separate can actually save your spouse's assets from your creditors. In this sense, a prenuptial agreement can create a legal shield that will help to protect both your and your loved one.
Buying car insurance does not assume that you will be wrecking your car. Having health insurance does not mean that you will get sick!
In much the same way, a prenuptial agreement is no different. Marriage is one of the biggest, most life-altering decisions a person can make. Does it really make sense to protect you and your spouse when it comes to your car and your health but not to protect yourself and your spouse in something so life-changing as marriage?
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A prenuptial agreement is a document signed by two people prior to their wedding. The document outlines an agreement between the spouses dictating what will happen with property once the couple is married, in the event of a divorce, and/or in the event of a death of one of the spouses.
The most common reasons people seek out prenuptial agreements include scenarios where one person enters the marriage with significantly more assets than the other, one spouse wants to ensure that his or her children from a prior relationship get their fair share of assets, or one spouse enters the relationship with significantly more debt than the other. Having a prenuptial agreement can help with any of these scenarios.
Although prenuptial agreements are a relatively new invention in the legal world, most courts have begun upholding their validity if properly done. There are, however, certain scenarios in which prenuptial agreements have not been upheld. Namely, if the court feels that the agreement is completely unfair to one of the parties, if the court feels that one of the parties was coerced into signing it, or if the court feels that the agreement will increase the likelihood that the parties will get a divorce.
Generally speaking, prenuptial agreements address only issues related to money or property. They do not usually address chores that a spouse must carry out. So for example, a prenuptial agreement stating that the family car remains the property of only one of the spouses, would very likely be enforceable. A clause requiring that one of the spouses do laundry every week for the duration of the marriage would not.
One of the key components of prenuptial agreements is that they be made “in contemplation of marriage”. This means that each of the spouses needs to have signed the agreement when they knew the marriage was going to occur. Thus if a cohabitation agreement was signed without any reference to marriage, the terms of the agreement would very likely not be enforceable.
In order to be upheld as valid, a prenuptial agreement must have been signed without any coercion by the other spouse. Imagine that the chapel has been lined up and paid for, you've gone to the wedding rehearsal, your family has all flown into town for the occasion, and suddenly your spouse comes to you and says, “Sign this, or it's off!” Most courts have upheld that such a scenario is coercion. One spouse has been essentially forced into signing because they don't feel that they can cancel the wedding at such a late date. In other words, the longer the agreement is signed prior to the marriage, the better. In California you must sign a prenuptial agreement at least 7 days before the wedding.
Generally speaking, yes, although these documents are referred to as “post nuptial agreements” instead of prenuptial agreements. Obviously, both spouses would need to sign the document.
Generally speaking no. However, there are certain states in which you have to jump through a few extra hoops in order to make a prenuptial agreement valid if you have not spoken with an attorney. For example, in California the law requires that you speak with an attorney or sign a waiver, separate from the prenuptial agreement, that specifically waives your right to an attorney.
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