Marriage is a contract of love…as well as a financial one.
Having a premarital agreement in place before pledging your vows can have further reaching financial effects than just the “he/she is not getting all my money” concept people generally associate with prenups. There are a variety of clauses that go into these documents that can protect you and your beneficiaries in a number of ways.
Nationally, more and more people are having prenups drafted before tying the knot. The huffingtonpost.com recently reported: “According to a new survey of the American Academy of Matrimonial Lawyers (AAML), 63 percent of divorce attorneys say they’ve seen an increase in prenuptial agreements during the past three years. What’s more, 46 percent noted an increase in the number of women initiating requests for prenups.”
The primary reason for either party to enter in a premarital agreement is for security. For the person who has a low paying (or no) job and/or little assets, the prenup can help to ensure that they receive a fair settlement amount or support after a divorce. Conversely, the higher wage earner is naturally protected from losing half their financial resources from what boils down to a fraudulent marriage; meaning one where their spouse sought to get married with the main goal of ultimately usurping their fortune.
Laws governing marriage, and pre-nuptials specifically, will vary from state to state. It is of extreme importance that you (or a legal professional you are receiving assistance from) take into consideration how your state’s rules and regulations will affect you.
The Benefits of Having a Prenup
You can protect the inheritance rights of your children from a former marriage. What this means is that your child can be entitled to inheritance benefits (meaning money, property and other assets) from your new spouse even if you divorce.
If you own a business your partner will not be automatically granted a portion of it following your divorce. Without a prenup, your ex could potentially receive up to half of your business (meaning profits and/or control).
With a premarital agreement in place, you can protect yourself from any debt your husband/wife may have accrued either prior to or during the marriage. Without a prenup, you could be responsible for debt that you may not have even known existed.
Sometimes your spouse does not want you to work anymore, or ensures that you need not work. In the circumstance that you intend on relinquishing a high paying career after getting married, with a proper prenup, you can be entitled to receive compensation that you may have lost from giving that job up.
Not everything that goes into a prenup is economic in nature. There can be very specific things detailed that relate to aspects of the relationship in general, to the maintaining of the household, to the raising of children. The sky is the limit as long as both parties ultimately agree to all the clauses.
As is typically known, premarital agreements can place a cap on what one spouse will have to pay the other in terms of support after the finalizing of a divorce (or even during a separation period).
As hinted at earlier, the prenup can provide the spouse who has considerably greater assets with security from having to concede an unfair amount of them to their soon-to-be ex. Figures can be specified in terms of hard numbers or percentages, sometimes allocating zero to the ex-spouse.
Negative Aspects Associated with Prenups
Premarital agreements may stipulate that you will have no claim to any inheritance from your spouse in the event of their death. Even if your spouse does not include you in their will, the law dictates that you should receive a percentage of their estate. A prenup can completely eradicate this and the entire estate can pass to others.
If you help your spouse to grow their business (in any substantial manner), the amount that is has grown by is often considered “divisible marital property” by many states. A prenup can nullify this entirely as well.
The whole concept of devising a prenup often has negative connotations. The implication is that you are beginning a new life together…yet there exists a mutual sense of distrust. While the prenup may be very wise for both parties, it can seem like a cold and somewhat sterile way to enter into a marriage.
Some particulars of a premarital agreement may seem minuscule in importance during the drafting of the document, but can become significant down the road. Due to the often capricious and unpredictable way life unfolds, certain assets may rise or plummet in value, and due to the specifics of the prenup you could possibly lose out considerably. In addition, some responsibilities outlined in a prenup may be innocuous at first, but can become oppressive over time.
This may seem inconsequential for some, but there are cases where one partner gets used to a certain way of living that, once divorced, they can not maintain due to limited finances. Standard divorce court may take this into account, but a prenup may not provide much or any help with this dilemma.
Finally, there is the “trusting too much” factor to consider. At the inception of a relationship, people can sometimes become so “blinded by love” that they will acquiesce to conditions in a prenup that are not in their best interest at all. They just can’t even fathom that their marriage would end in divorce – and ultimately pay the consequences.
At the end of the day, prenups are not the be-all end-all tomes they may be perceived as. According to lawyers.com, the good news is that if there is something outlandish or entirely one-sided stated in a prenup, it doesn’t mean it will definitely be adhered to: “Prenups don’t necessarily set in stone how the asset distribution will play out in a divorce — they can be partially or wholly voided by a judge under certain circumstances, such as if the contract was entered under fraud or duress or is unfair or unconscionable toward one of the parties.”