Prenuptial Agreements and Children

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 What Is a Prenuptial Agreement?

Before learning how a prenuptial agreement may help to protect children, it is important to understand the basics of what a prenuptial agreement is.

A prenuptial agreement is a private contract between two people who plan to get married but have not been married yet. The contract is typically used to determine how income, assets, and other issues that come with marriage that may be of interest to the parties should be dealt with both during the marriage and if the couple should seek a legal separation or divorce. While it is a private contract, if it has been drafted correctly, courts will enforce it.

What Issues Can a Prenuptial Agreement Address?

The main issues that a prenuptial agreement can address are the characterization and division of property in case the spouses separate or divorce. When a couple separates, or divorces, a family law court in the state in which they reside determines how to characterize their property. It characterizes the property as separate property or marital property, or community property depending on the law of the state. Separate property belongs to one spouse only.

Marital property or community property belongs to both spouses. In marital property states, this property is divided between the spouses fairly and equitably if they separate or divorce. In a community property state, this property must be divided equally between the spouses.

Spouses may wish to avoid having a court decide what happens to their property. One spouse may wish to ensure that their separate property remains separate in the event of divorce. Or, spouses may wish to ensure that marital or community property is also properly characterized.

Spouses can distinguish in the prenuptial agreement which assets should be considered separate property. This might be property from a previous marriage, an inheritance, or a family business that they want to remain in the family of one spouse only. Any other property acquired during the marriage would be considered marital assets or community property subject to distribution by the court.

The law regarding prenuptial agreements and what can and cannot be determined by them is not the same in all states. Some states allow the spouses to decide whether either of them would be entitled to alimony. Other states prohibit provisions regarding alimony. In addition, some states enforce limitations on the kind of provisions that can be made in prenuptial agreements regarding the children of the marriage.

How Can a Prenuptial Agreement Protect My Children?

Following are some of the ways in which a prenuptial agreement may serve as a valuable protective measure for a couple’s children.

If a person is getting remarried and has children from a previous relationship, then a prenuptial agreement can help guarantee that those children will inherit all or at least a portion of the person’s assets.

Many states, such as Alabama, have laws that prohibit a person from leaving nothing to their spouse in a will. This means that a person’s new spouse could potentially collect the assets that a person may have wanted to bequeath to their children from a prior marriage.

By having a prenuptial agreement that clearly states how children from a prior marriage and a new spouse are to be recognized, these state laws can be bypassed, effectively protecting the inheritance of a person’s children from a prior marriage.

Of course, it is also very important to have a will to ensure that one’s assets are distributed exactly as a person wishes on the occasion of their passing, especially to children from a prior marriage and a new spouse. A person would not want to rely on a prenuptial agreement alone but should have a complete estate plan, including a will.

If This Is My First Marriage and There Are No Children Yet, Why Do I Need a Prenuptial Agreement?

In general, a prenuptial agreement is a good thing to have, even if this is a person’s first and only marriage. A prenuptial agreement acts like an insurance policy, much like health insurance: if, for some reason, the marriage fails, the contract can protect the assets of both spouses. A person does not plan on getting sick, but if they do, then they have protection.

People often do not think about all of the legal and financial consequences of marriage. The exercise of reviewing the issues and deciding how a couple wants to deal with them can be informative for them. They can learn about the effect that marriage can have on their financial situation, how the law works, and how they themselves want to manage their own situation.

A prenuptial agreement can provide protection for future children. If a person and their spouse have no children yet but are planning on having them in the future, then the prenuptial agreement can contain clauses for those children, including:

  • How the children will be educated, e.g., in a public or private school;
  • In what religion, if any, will the children be raised;
  • How much the couple plans to contribute to their children’s college funds.

Furthermore, prenups may also contain provisions that provide direction as to how the couple wants to manage family property, such as an heirloom or family business, that one or both of the spouses wish to keep within the family and plan on giving only to their future children.

What Issues Affecting Children Cannot Be Included in a Prenup?

Another major concern that couples consider when entering into a prenuptial agreement is, in the event of a divorce, their former spouse may get remarried. Although a prenuptial agreement can protect some things that belong to children from the first marriage, like money and property, it cannot account for everything.

Therefore, it is important to know what items cannot be included in a prenuptial agreement because these details can also have an impact on a person’s children from their first marriage. A prenup cannot include clauses regarding:

  • Child support;
  • Child custody; or
  • Visitation rights.

Instead, these issues must be handled by a family court judge if the spouses separate or divorce. This is because decisions affecting children must be made in the best interests of the children of the marriage and addressed in the court where the support or custody decisions are made.

Does a Lawyer Have to Draft My Prenuptial Agreement?

Drafting a prenuptial agreement can be challenging. While a couple is allowed to draft the initial terms of the contract on their own, the laws for prenuptial agreements vary by state.

Some states have specific requirements that must be met before the prenuptial agreement is considered valid, and many other states require an attorney to review the prenuptial agreement in order to finalize it. For that reason, it makes sense to start by consulting an attorney about the law in the state where the couple plans to reside.

The last thing a person wants to face after initiating a divorce is the question of whether the prenuptial agreement is valid. This can be a lengthy process and add even more stress to something such as a divorce proceeding.

>Do I Need the Help of a Lawyer for My Prenuptial Agreement Issue?

Consulting an experienced prenuptial agreement lawyer can help you to decide on what provisions to include in your prenuptial agreement, and they can check to make certain that all state laws regarding the agreement are properly followed. The law regarding property acquired during marriage and how it should be distributed is different in different states.

Likewise, the law regarding prenuptial agreements is different in different states. That is why a template taken off the internet may not achieve what the parties to a marriage want it to achieve.

A family lawyer can also provide guidance about what rights you have in your state, work with you to protect your interests and maintain a secure copy of the agreement on file should you ever lose it and need access to it again in the future.

Whether this is your first time getting married or you are getting remarried, having a prenuptial agreement is in your best interests. Contact a family lawyer today to protect your rights, as well as the rights of your current or future children.

As a precaution, those involved in the relationship should hire separate attorneys to draft and review the prenuptial agreement. This will help ensure that the interests of both parties are protected and that the final prenuptial agreement is fair.

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