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Prenuptial Agreements

Prenuptial Agreements

According to the Uniform Premarital Agreement Act or UPAA, a premarital agreement, often referred to as a prenuptial agreement or a prenup is "an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage".

Prenuptial Agreeements

Prenups can cover assets, personal property including a professional license or practice, employee benefit plan, pension and retirement accounts, etc.

The following issues can be dealt with in a prenuptial agreement

  • The division of property in the event of a divorce
  • Distribution of property in the event of death
  • Alimony
  • Who owns the marital residence
  • Who is responsible for premarital debts
  • What state governs the prenup
  • How any disputes regarding the prenuptial agreement will be resolved

Additionally, it can call for the forfeiture of spousal support based on specific behavior such as adultery. It can also include what is referred to as a sunset clause. In other words, the prenup becomes invalid after a predetermined amount of time that the couple remains married.

There following issues, mostly relating to children cannot be dealt with in a premarital agreement

  • Child custody
  • Religion and education of the children
  • Child visitation
  • Child support
  • Anything that is illegal or unfair

Because a prenup is a legal document, there are certain rules that need to be followed to insure that the agreement is binding

  • The agreement must be in writing and signed by both parties. Rules regarding witnessing of the signatures vary by state.
  • There must be full disclosure of property and finances. If down the road it is determined that either spouse hid something, then the prenuptial agreement may be declared void.
  • The agreement must be entered into voluntarily and in a timely manner... in other words not the day before the wedding!
  • Both parties should have separate legal counsel

Prenuptial agreements are ordinarily used in circumstances where one person owns or is a partner in a business, has considerable assets, or significant earning capacity. Couples who are older or have children from a previous relationship can benefit from a premarital agreement. A prenup can also include anticipated assets such as an inheritance.

Prenuptial Agreements are valid in all 50 states and the District of Columbia. It doesn't matter whether the state is a community property state or an equitable distribution state. Since enacted 1983, at least 27 states have enacted a variation of the Uniform Premarital Agreement Act. The exact UPAA standards differ from state to state.

A prenuptial agreement can be modified after the marriage if both parties agree to the modification. The new agreement then becomes a postnuptial agreement.

Unfortunately, prenuptial agreements are often viewed in a negative light in our society. Nobody wants to enter a marriage with the thought that it might end in divorce but a well thought out and executed prenuptial agreement can save much money and emotional grief in the event of a divorce or death of a spouse.

Postnuptial Agreements

Occasionally people will decide after the marriage to enter into an agreement outlining what will happen in the event of a divorce or the death of one of the couple. For instance, if after the wedding the couple will decide to purchase what would be considered community property with separate property. Another situation that may call for a postnuptial agreement would be if one spouse enters into a business partnership. The prospective partners may require a postnup stating that if the couple divorce or the partner dies the spouse would have no claim to the business.

In general, if something is not allowed in a prenuptial agreement is won't be allowed in a postnuptial agreement.

As with any contract, it is advisable to have a qualified attorney review the contract before signing.

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