Prenuptial Agreements

The purpose of a prenuptial agreement is to enable couples, prior to marriage, to agree to a plan for the division and distribution of the assets they bring to and acquire during their marriage, before the marriage is terminated by death or divorce and before a dispute arises.

Without a “prenup” the variances and varieties of the laws of various states at any point in time can determine how the couple’s assets and debts are divided.

Prenups can be beneficial in numerous instances. When one spouse’s family owns a business, a prenup may insure that the ownership of the business remains in the family rather than passing to an in-law. Assets that one spouse may have prior to the marriage or obtain during the marriage can also be protected by a prenup to insure that they remain in one family following a divorce. With the increasing number of second and third marriages, prenups can protect inheritances for children from a prior marriage, insure that certain assets or property benefit children of a particular marriage, and avoid the distribution of assets among stepchildren or children of multiple marriages.

While a prenuptial agreement cannot limit statutorily mandated child support, it can limit alimony or spousal support, and provide that the parties will not unintentionally allow transmigration, converting non-marital property to marital property, due to their actions or statements. It can also prevent one spouse from being liable for certain debts of the other. The prenup can also provide for the duties and obligations of each spouse relative to the use, occupancy, possession and ownership of particular assets, as well as address the rights of stepchildren.

By law, a prenup is only enforceable if it’s in writing and there’s a full and fair disclosure of each party’s assets. Strict compliance with the law is necessary in order to enforce a prenuptial agreement, and each party should be represented by counsel. After the parties disclose their assets, they agree on a method to distribute the assets on divorce or the death of one of the parties, including non-marital assets, assets owned before the marriage, gifts and inheritances received during the marriage, and marital assets, property brought into or acquired after marriage.