What a prenup does and does not do
With spring upon us and wedding season around the corner, this is the time to determine whether a prenuptial agreement may be appropriate.
A prenuptial agreement is essentially an insurance policy. It is not only for those who are wealthy, those with children or those being married for a second time.
Anyone getting married can benefit from this contract. However, a prenuptial agreement cannot cover all issues, especially those concerning children born of a marriage.
To make the decision of whether or not to get a prenup, let's consider what this document can and cannot do.
What a prenuptial agreement can do
A prenuptial agreement is designed to protect one from the legal ramifications associated with divorce and death. In the case of divorce, the terms of a prenuptial agreement can predetermine what assets are marital and what assets are not marital. A determination can also be made as to the division of assets. Terms of alimony and spousal support or the waivers of same can be included in the agreement. Thus, if your relationship ends in divorce, it is less likely you will incur the emotional and financial costs that are otherwise associated with a divorce.
In a prenuptial agreement, one can also contract around state law that would otherwise control in the event of death. In other words, most states do not allow you to disinherit your spouse, and if you should die, while still married (even if you are estranged from your spouse), your spouse stands to inherit a portion of your estate. In a prenuptial agreement, your spouse can waive his or her right to take a share of your estate.
A prenuptial agreement can also force marrying couples to discuss finances before the marriage. The requirements for a prenuptial agreement vary from state to state. Most states, however, do require a full and fair disclosure of assets by each party prior to the signing of the agreement.
This means that each party must provide to the other at least a list of all assets that they currently own along with the values of same. Debts should also be divulged. To the extent supporting documentation of the asset values is available, it should similarly be provided. Full and fair disclosure prior to the time of the signing of the document prevents one party from coming back later with the claim that they were unaware of the amount of assets they forfeited by entering into the agreement. It also makes couples discuss how they will deal with their assets and money during the marriage.
What a prenuptial agreement cannot do
A prenuptial agreement cannot contract for the custody of children (especially those not yet born). Similarly, a prenuptial agreement is not enforceable with regard to child support. You cannot validly predetermine how much you will pay in child support in a prenuptial agreement.
More and more, people are trying to include lifestyle clauses in prenuptial agreements such as clauses about weight, frequency of sex, household cleanliness, infidelity punishments, etc. While there is no barrier to including these types of clauses in prenuptial agreements, most are likely unenforceable anyway, as violations of some are too difficult to prove.
So along with the venue, the caterer, the flowers and the honeymoon destination, when planning the wedding of your dreams and your future together, couples should also weigh the cost/benefit of a prenuptial agreement. Just like you would not drive a car without automobile insurance, you should not take a walk down the aisle without a prenuptial agreement.
Jennifer A. Brandt is a family law attorney specializing in divorce, custody, alimony, support and distributions of assets who is a member of the law firm Cozen O'Connor and who answers legal questions on Avvo.com, a free social media platform that provides a legal Q&A forum, directory and marketplace.