Wrapping Up On The Prenuptial Agreement

Currently, prenuptial agreements are recognized, although they may not always be enforced. Both parties should have lawyers represent them to ensure that the agreement is enforceable. In some cases, the parties retain a private judge to be present during the signing, to be sure that neither party has been coerced into the agreement. Some attorneys recommend videotaping the signing, although this is optional.

Prenuptial agreements are, at best, a partial solution to obviating some of the risks of marital property disputes in times of divorce. They protect minimal assets and are not the final word. Nevertheless, they can be very powerful and limit parties’ property rights and alimony. It may be impossible to set aside a properly drafted and executed prenup. A prenup can dictate not only what happens if the parties divorce, but also what happens when they die. They can act as a contract to make a will and/or eliminate all your rights to property, probate homestead, probate allowance, right to take as a predetermined heir, and the right to act as an executor and administrator of your spouse’s estate.

Choice of law provisions are critical in prenups. Parties to the agreement can elect to have the law of the state they are married in govern both the interpretation of the agreement and how property is divided at the time of divorce. In the absence of a choice of law clause it is the law of the place the parties divorce, not the law of the state they were married that decides property and support issues.

The strategies below are intended to help you easily and painlessly convince your husband- or wife-to-be that a prenuptial agreement is in his/her interest as well as yours.

Discuss the Topic Early

Don’t wait until a week before your wedding to discuss a prenuptial agreement with your intended. Explore the topic early in a relationship, if possible, resolve the issue before you become engaged.

Ask, Don’t Assume

People have all kinds of notions about prenuptial agreements, many of them unfairly colored by the media’s reporting of highly publicized, and often bitter, divorce proceedings. Don’t assume that you and your spouse-to-be are on the same page with this topic; ask.

A Topic for the Head Not the Heart

It’s tough to talk about your loving, committed relationship as if it were a business arrangement. If you and your intended can agree to be logical (rather than emotional) about the preparation of a prenup, you’ll find it much easier.

Remember that this agreement is only valid if it is completed prior to marriage. After a couple is married they may draw up a post-nuptial agreement which will be our next topic.

THOUGHT OF THE WEEK

“Things are as they are because they were as they were.”