He or she proposes and you accept and the date of your marriage is set. You then sit down to discuss a prenuptial agreement. Is it appropriate to think about the end of your marriage while you are still navigating the beginning of it?
Unfortunately, approximately one-third of all first marriages and nearly half of all second and third marriages end in divorce. So, discussing a prenuptial agreement may not only be practical, but necessary.
This article explores whether it is fact or myth that a prenuptial agreement indicates trouble ahead and if you can trust your future spouse and still get a prenuptial agreement.
What is a Prenuptial Agreement?
A prenuptial agreement, premarital agreement, or prenup, is an agreement entered into prior to a marriage which basically says how you and your spouse will divide things in the event that your marriage is dissolved. It can account for both assets (things you own) and liabilities (things you owe).
In many ways, a prenuptial agreement is a contract like any other––fully enforceable by a court of law––but you may or may not need one. Many things are protected under state law with or without a prenuptial agreement, including:
- Assets owned prior to your marriage; and
- Gifts and inheritances you receive from family during your marriage.
It should also be noted that a prenuptial agreement can never designate which parent will have custody of a child in the event of a divorce. This will be determined by a family court based on the best interest of the child.
Why Have a Prenuptial Agreement?
Many couples contemplate prenuptial agreements but don’t enter into one because they consider them to be unromantic. However, in the eyes of the law, marriage itself has nothing to do with romance; it is simply a business contract between two parties.
While it may not be exciting to think of marriage as a matter of business, you are entering into a business relationship. And as with any business relationship, you should seek to protect your assets.
Protecting your assets from a divorce can begin even before you say I do. No one that is getting married wants to plan for divorce, but given the high rate of divorce, no one can accurately predict that divorce will not be a part of their future.
If you have children from a previous marriage, a family business, or other separate assets that you would want to protect from future divorce litigation, entering into a prenuptial agreement may be the right decision for you.
That being said, here are a few myths and facts regarding prenuptial agreements that you should be aware of:
Myth: A Prenuptial Agreement Indicates Trouble Ahead.
A lot of people believe that simply discussing a prenuptial agreement is a sign that a marriage is in on the rocks, even before it begins. But, the truth is, there is absolutely no evidence that merely discussing the possibility of or even entering into a prenuptial agreement leads to divorce or even an increased likelihood of divorce. Since discussing a prenuptial agreement will require a couple to talk honestly about each other’s financial rights, responsibilities, and expectations, the exact opposite may be true and a couple may be empowered to stay together longer.
Fact: You Can Trust Your Future Spouse and Still Get a Prenup.
Even if you completely trust your future spouse, there are still good reasons why you may want to have a prenuptial agreement in place.
Think of it this way: every marriage eventually comes to an end, either by death or divorce. It makes sense to take steps to plan for that end so that there is no dispute later on in the event that you are dealing with a contested probate or a contested divorce.
Plan now, while you respect and care for each other, how you want to treat each other in a divorce and certainly how you want to treat each other in the event that one of you passes away while you are still happily married.
There may also be third parties who have an interest in the outcome of your marital relationships, such as children (both from your current relationship and prior relationships) and extended family members. Therefore, signing a prenuptial agreement is not always about whether you trust your fiancé or not; in many cases, it is about simply being responsible.
Myth: Prenups Are Only for Wealthy People.
While in the past, prenuptial agreements were associated with wealthy individuals, couples of more modest means are increasingly using them to do things such as:
- Define each other’s financial rights and responsibilities during the marriage
- Clarify who is entitled to income earned and property acquired during the marriage
- Clarify ownership of and interests in a spouse’s business
- Create a plan for how the property will be divided if the marriage is dissolved
- Decide on the amount of alimony or spousal support to be given from one spouse to the other after the dissolution of the marriage
- Protect each spouse from the other’s debts
Fact: You Should Consult With An Attorney Before Drafting or Signing a Prenuptial Agreement.
Premarital agreements often involve complex areas of law, such as equitable distribution, spousal support, and even constitutional rights. Whether you wish to have a prenuptial agreement drafted or if you have been asked to sign one, seeking the advice of a family law attorney is an excellent idea.
What’s more, if you are interested in drafting a prenuptial agreement, not only should you consult with an experienced family law attorney, you may also wish to advise your future spouse that he or she should seek the advice of an attorney as well. Courts consider a number of factors when deciding if a prenuptial agreement is enforceable, and one of those factors is whether both parties to the agreement were represented by individual counsel.
If you are thinking about entering into a prenuptial agreement and want to learn more, we recommend talking to an experienced family lawyer near you. Call Mann & Kemp today at (501) 222-4730 or click here to request an appointment to speak with one of our expert Arkansas family law attorneys.