By Kirk C. Stange
In a broad sense, the overall goal of any prenuptial agreement is to define the terms and conditions of property and debt division, spousal support, and attorneys' fees should the marriage of the parties end in a dissolution or legal separation. Pre-nups can help ensure an estate plan is carried out how the client wants it to be. It is important to include supporting documents along with the pre-nup such as a valid will and living trusts. Another goal of premarital agreements is to minimize the controversy, conflict, and stress of a divorce a couple could potentially be involved in later. If all of the messy decisions are already made in a premarital agreement, the parties can have a cleaner separation and divorce and avoid large legal bills and time in the court system. Premarital Agreements can help protect individual assets as part of a larger estate plan.
A prenuptial agreement should be evaluated for senior citizen clients not only for the stereotypical reasons but also because senior citizen clients are more likely to have greater assets to protect, children from prior marriages, health issues and other concerns unique to them that can be addressed in and protected by a prenuptial agreement. Your Elderly Clients Marry: Prenuptial Agreements and Other Considerations, 16 J. Am. Acad. Matrim. Law. 445, 445 (2000)
"Premarital agreement" means an agreement between individuals who intend to marry which affirms, modifies, or waives a marital right or obligation during the marriage or at separation, marital dissolution, death of one of the spouses, or the occurrence or nonoccurrence of any other event. The term includes an amendment, signed before the individuals marry, of a premarital agreement. Uniform Premarital and Marital Agreements Act, Section 2(5). The prenuptial agreement can contain a provision requiring the parties to execute joint wills. Carolyn L. Dessin, The Troubled Relationship of Will Contracts and Spousal Protection: Time For an Amicable Separation, 45 Cath. U. L. Rev. 435 (1996).
In drafting any premarital agreement and concurrent estate planning documents, the right of a spouse to take an elective share should be considered. Under the Uniform Probate Code, a spouse may waive the spousal elective share before or after marriage by written contract, agreement or waiver. Thus, the attorney should address whether such a waiver will be included in the agreement. P. Andre Katz & Amanda Clayman, When Your Elderly Clients Marry: Prenuptial Agreements and Other Considerations, 16 J. Am. Acad. Matrim. Law. 445, 457-58 (2000)
Wealthy couples have long been prime candidates for prenuptials. Famous couples who have entered into prenuptial agreements include John F. Kennedy, Jr. and Carolyn Bessette, Michael Jackson and Lisa Marie Presley, and Madonna and Sean Penn. Besides protecting their fortunes, prenuptials allow the rich and famous to circumvent some of the unpleasant discovery proceedings endemic to a contested divorce. Allison A. Marston, Planning for Love: The Politics of Prenuptial Agreements, 49 Stan. L. Rev. 887, 892 (1997). Couples in which one or both of the partners has been previously divorced may also have good reason to seek the protections of a prenuptial agreement. Often the parties wish to protect their assets for their children of former marriages. Allison A. Marston, Planning for Love: The Politics of Prenuptial Agreements, 49 Stan. L. Rev. 887, 892 (1997)
In July 2012, the Uniform Law Commission promulgated a new act-the Uniform Premarital and Marital Agreement Act (UPMAA)-to address the enforceability of prenuptial agreements but only two states have adopted this law. The UPAA is a uniform act that provides a basis for states to determine how and when a premarital agreement should be enforced. Amberlynn Curry, The Uniform Premarital Agreement Act and Its Variations Throughout the States, 23 J. Am. Acad. Matrim. Law. 355 (2010).
Several arguments have been made for and against prenup agreements. Opponents of such agreements argue that it is a bad start to a marriage. No one wants to contemplate the end of a marriage before it even begins. Others say that it is not a romantic idea and a prenuptial agreement stands in the way of true love. Still other arguments can be made that it shows a lack of trust in future spouse, something many couples see as fundamental in their relationships and if you are questioning it at the beginning of the marriage, you will question it later as well. Religious figures argue that prenuptials distract couples from the "five C's" of marriage: "communication, commitment, conflict resolution, children, and church." Jonathan P. Decker, Wedding Checklist: Couples Add Premarital Counseling, Christian Sci. Monitor, May 2, 1996, at 12. There is often an argument made that there is a potential of unfair division, especially concerning a wealthier spouse.
Many couples in a long-term or 30 year marriage who divorce don't have a lot of time to recover financially.
Despite several opponents of prenuptial agreements, there are a large number of lawyers and several couples who point out the benefits of prenuptial agreements and argue that they are a smart choice for couples. Proponents argue that prenuptial agreements force couples to discuss important financial issues before they are married. Negotiating a prenuptial agreement may save a couple from a disastrous marriage. Allison A. Marston, Planning for Love: The Politics of Prenuptial Agreements, 49 Stan. L. Rev. 887, 894 (1997). Other arguments include the idea that prenuptial agreements aid family harmony in second marriages, especially for children from the first marriage worried about their inheritance. Allison A. Marston, Planning for Love: The Politics of Prenuptial Agreements, 49 Stan. L. Rev. 887, 895 (1997).
Mr. Stange is a Managing Partner of Stange Law Firm, PC. He is licensed in Missouri, Illinois, Kansas and the United States District Court for the Eastern District of Missouri. He received his Juris Doctorate from the University of Missouri-Columbia in 2000. Mr. Stange has years of complex family law litigation experience. Mr. Stange is also a trained mediator, collaborative attorney and guardian ad litem.
The Stange Law Firm, PC is dedicated exclusively to the practice of family law. Since our founding we have continued to grow. Our firm was on St. Louis Business Journal's list of the Top Law Firms in St. Louis, in 2014, ranked by the number of licensed attorneys.
We work together to handle a broad spectrum of family law matters for our clients, including divorce and separation, child custody, child support and family violence. Regardless of the matters you face, you can contact us for a half-hour consultation.
You can be contact Stange Law Firm, PC by phone at: (314)963-4700
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