Couple signing a Prenup agreement

Who Needs a Prenup?

When 2 people get married, they may choose to combine certain aspects of their lives, such as their finances and future purchases. However, when a marriage does not work out in the long run, there may be conflict over which spouse should retain ownership of certain assets. This sort of disagreement can complicate divorce proceedings and cause significant stress for each party. Conflicts over assets and certain other marital conditions can be avoided through a prenuptial agreement. Who could benefit the most from a prenup?

What Is a Prenuptial Agreement?

Prenuptial agreements are legally binding contracts a couple planning to marry will create and sign prior to their marriage. Also known as premarital and antenuptial agreements, these contracts outline the way a couple’s assets will be divided if their marriage ends in divorce or if one spouse passes away before the other. They may also cover which spouse will be responsible for which debts. Note that a prenuptial agreement only becomes legally enforceable once a marriage has taken place, even if they are signed prior to the wedding.

What a Prenup Can Cover

A prenuptial agreement can protect a person’s valuable assets they obtained prior to being married. They can also protect certain property that was acquired over the course of the marriage, both individually and jointly. For example, a prenuptial agreement might cover a sizeable inheritance someone is expecting to receive and knows about prior to their marriage. If listed in the agreement, all of the money from said inheritance would remain with the rightful spouse if their marriage ended in divorce. Examples of what can be covered in a prenuptial agreement include:

  • Retirement funds or savings for education saved by either spouse prior to or during the marriage
  • The division of property owned by either spouse at the time of their marriage
  • Spousal obligations if the marriage ends in divorce
  • Preventing either spouse from being responsible for the other spouse’s debts should the marriage end in divorce
  • Any inheritance set aside for children born from prior relationships
  • Protect the financial aspect and ownership of a family business
  • Estate planning elements relevant to the execution of the provisions of the prenup
  • Protection for family heirlooms by ensuring they will be kept within the family should the marriage end in divorce

What a Prenup Cannot Cover

A prenuptial agreement can cover a significant number of issues, many of which provide peace of mind to engaged couples. However, there are certain elements of a relationship that prenups cannot cover under the law. There are also certain provisions that can lead to a prenup being unenforceable. Some examples of provisions that cannot be included in a prenuptial agreement include:

  • Child support and child custody: The law does not allow marrying couples to put provisions regarding child support and child custody agreements within their prenuptial agreement. This is because these issues are handled by the courts. The courts become involved to ensure that any children born to a divorcing couple are receiving adequate time with each parent and that their custody arrangement is within their best interests.
  • Unequitable provisions: A prenuptial agreement cannot be enforceable if the provisions within are grossly unfair to either party. For example, a prenup cannot state that one party will receive all financial assets in the event of a divorce. Courts will not take such requests seriously and may interpret them as one spouse trying to scare the other out of ever seeking a divorce.
  • Domestic issues: Prenuptial agreements are not meant to decide how a person will look or behave within a marriage. For example, an agreement that states one spouse must engage in sexual intercourse on a regular basis will never be legitimized by the courts. Prenups are not designed to mold someone into the person their spouse wants them to be.
  • Anything illegal: A prenup that includes provisions relating to illegal activity will not work. For example, a prenuptial agreement cannot include a provision requiring a spouse to engage in a crime or risk being divorced.

Why Do People Choose Prenups?

Every person in a relationship will choose to handle their business differently. However, nearly every couple planning to get married can benefit from a prenuptial agreement. They provide the opportunity to answer most questions about the division of assets in a divorce before that situation becomes a reality. This can ease the minds of the marrying couple and their families and simplify divorce proceedings if they do occur. Some more specific reasons people opt for prenuptial agreements include:

  • One spouse has significantly higher financial assets than the other. A prenuptial agreement may prevent the wealthier person from worrying that their spouse wants to divorce them and collect their assets. It can also give the less wealthy spouse an opportunity to prove their dedication to their spouse.
  • One or both people have their own business interests that generate wealth. Prenups can protect small businesses and ensure that the original owner remains the owner should they go through a divorce.
  • One or both people have been married prior to this relationship and have fears that this marriage may end in divorce. These fears are valid and do not mean they don’t love their spouse. Prenuptial agreements exist to provide peace of mind to people in this exact situation.
  • The prenuptial agreement will simplify their divorce if it were to occur. The terms of a divorce are decided by existing statutes, judicial precedence, and even trials if a prenuptial agreement is not in place.

Unenforceable Prenuptial Agreements

Sometimes, a prenuptial agreement is created in such a way that the courts cannot legally or morally enforce it. For example, a prenup will not be enforceable if it is not created in writing, signed by both parties, and notarized.

The courts want to ensure that any prenup that comes before them was created fairly and justly. If the court discovers that either party signed the agreement while under duress, the agreement will be invalidated. For example, an agreement that was signed under threats of violence from one spouse cannot be used if divorce occurs. Similarly, the courts will want to ensure that both spouses were able to review the agreement and seek legal counsel prior to signing it. An agreement that was drafted and signed the day before the marriage will set off red flags.

Courts will investigate to ensure that a prenuptial agreement that comes before them was only signed by people mentally competent enough to do so. If either spouse signed the agreement while suffering from a serious mental illness or mental disability, the legitimacy of their understanding of the document may come into question. This also applies to anyone who signs a prenup while intoxicated.

Finally, the courts want to make sure that all prenuptial agreements are free of fraud. A prenuptial agreement that includes inflated financial assets from either party cannot be enforced. This is because there is no way to fairly distribute assets that are exaggerated or do not exist.

Contact Us for Your Prenup

Creating a prenuptial agreement that satisfies all of the relevant parties and will hold up in court can be a complicated and difficult process. At the Law Office of Pamela C. Bratcher, we understand the serious nature of prenuptial agreements and can explain all of your options to help you make informed choices. Our experienced family law attorney can act as a neutral third party to help you and your spouse create the terms of your prenup. Contact us at (270) 977-8910 or online to schedule a consultation.