Do You Need a Prenuptial Agreement?
Discussing a prenuptial agreement with a prospective spouse may strike some as unnecessary; after all, if you've chosen the right partner, why do you need a prenup? Although discussing the business side of marriage can seem unromantic, it can make the process of meshing two lifestyles and estates far less messy. Whether a prenup is necessary, however, depends upon the unique circumstances of the couple contemplating marriage.
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Alimony Issues
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One issue that arises in the dissolution of a marriage is alimony. Although state law on spousal support varies from jurisdiction to jurisdiction, in general a dependent spouse in a divorce case can request payments from a supporting spouse in order to maintain her in the standard of living to which she became accustomed during the marriage. Alimony waivers in valid prenups will usually be upheld to the extent they don't leave the dependent spouse in need of public assistance, and prenups frequently contain these waivers. If you make significantly more money than your fiancee or have a higher earning potential, you might want a prenup that limits your alimony exposure in the event of divorce.
Equitable Distribution and Community Property Issues
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While there are some differences between equitable distribution and community property states, it is their similarity that makes some people want a prenup; in general, any property earned after date of marriage and before date of separation (date of divorce or the filing of a divorce complaint in some states) is considered marital and therefore divisible by the court regardless of in whose name the property appears. The same rationale applies to debt. If you're marrying somebody with poor financial habits, a prenup that waives equitable distribution or community property can protect you from your spouse's debts in the event of divorce. If you're a saver and she's a spender, it can protect the fruits of your labor, as well.
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Inheritance Issues
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Especially with second marriages or older couples, inheritance issues can become a major concern not only for the parties, but also their families. Even if you make a will leaving all pre-marital property to your children by a first marriage, most states give your surviving spouse a percentage share of your net estate; some states also give your spouse the right to receive the real estate titled in your name. Prenuptial agreements typically contain estate waivers that do away with these marital rights. They also leave the parties free to make wills of their choosing.
Negotiation of a Prenup
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While you may be planning to marry the other party, the negotiation of a prenup involves substantial divergent interests. Each of you should retain separate counsel; most matrimonial lawyers will tell you that if the other party does not want or cannot afford her own lawyer, you should hire one for her. Present the draft to her sufficiently in advance of the wedding to allow her time to have a lawyer look it over; this will help defeat any future claims of duress in the event you have to use the prenup in court.
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References
- Photo Credit marriage image by Mykola Velychko from Fotolia.com
