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What Are Premarital Agreements?
Premarital agreements are written contracts that are created by two persons who are planning to get married. They are also known as “prenuptial agreements”, “prenuptial contracts”, or simply, “prenups". These agreements are very similar to postnuptial agreements and cohabitation agreements. Prenuptial agreements allow the parties to clearly identify their own assets and debts, so that it will be easier to classify communal property that the couple acquires during marriage.
While many feel that premarital agreements can undermine the “romantic” aspects of marriage, premarital agreements may sometimes be considered a display of trust and openness between partners. Premarital agreements are not really used in anticipation of divorce or separation in the future; instead, they are used in situations where one partner has specific assets or property that need to be identified for legal purposes (such as a business operation).
What Is Typically Contained in a Premarital Agreement?
The provisions contained in a premarital agreement will depend on two major aspects. First, the state laws where the couple ilives may affect the outcome of a premarital agreement. State laws can vary regarding the requirements and enforceability of premarital agreements, especially where the state enforces community property principles.
Secondly, it’s largely up to the couple to address important legal issues in the premarital agreement. This will of course depend on the financial and legal background of each partner. Generally speaking, the following issues are commonly addressed through the use of a written, signed premarital agreement:
- Property that each partner owned separately before the marriage
- How property should be classified once the parties are married
- How to treat individual debts as well as shared debts
- Whether or not the couple will use joint accounts
- Division of child custody and visitation rights
- How to fulfill support payments (such as child support or alimony) in the event of divorce or legal separation
- Distribution of property upon divorce or separation
In order to be valid, the agreement should be put in writing, signed by both partners, and submitted to the court for approval. This will help prevent confusion in the future, and courts are more likely to enforce written agreements as opposed to oral agreements. Also, premarital agreements won’t be enforceable if they contain any provisions that are illegal or involve illegal conduct.
Can the Couple Change a Premarital Agreement Once It Is Signed?
In most cases, yes. A premarital agreement can often be amended, so long as both parties approve the changes and indicate their willingness to adopt the new changes. This can be done by rewriting and resigning a new contract. In general, the parties may need to resubmit the amended agreement to the court, so that the changed version becomes legally enforceable.
What Are Some Advantages of Premarital Agreements?
As mentioned, there can be several advantages of using a premarital agreement, in spite of the negative aspects associated with them. Some benefits of prenuptial agreements may include:
- Enhanced protection of family property and assets
- More protections for some business assets
- May help avoid costly litigation in the future
- Can provide some amount of protection from creditors
- Can make child custody and support guidelines more clear in the future
- Will help with distribution of property if divorce occurs
Thus, one of the main reasons to use a premarital agreement is to avoid litigation and court costs in the future. Therefore, it’s usually necessary to have a lawyer draft and review the agreement so that it fulfills the requirements of local and state laws.
Should I Hire a Lawyer for Help with a Premarital Agreement?
Premarital agreements can be very helpful, but they need to be carefully written in order to be enforceable. If you need assistance with a premarital agreement, it’s in your best interests to hire a family lawyer for advice and guidance during the process. Your attorney can help review the documents for accuracy. Also, if you need to file a lawsuit involving a premarital agreement, an experienced lawyer will be able to represent you in court.
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Last Modified: 12-08-2015 03:23 PM PST
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