Is a prenuptial agreement the best thing for your relationship? Many people fear that discussing these matters, or even bringing up the word prenuptial agreement, will cause turmoil in their relationship. Often, this is not the case. One of the main irreconcilable differences leading to divorce is finances. Talking to your spouse ahead of time regarding finances, property and marital asset management can avoid a lot of these problems. You both can get on the same page in the beginning so that the issue does not pop up and cause an argument later. Before making this decision, you should go through the pros and cons of a prenuptial agreement.
• documenting each spouse’s separate property to protect it as separate property
• supporting your estate plan and avoiding court involvement to decide property distribution
• distinguishing between what is marital and what is community property
• documenting and detailing any special arrangements between you and your spouse
• avoiding extended court proceedings, which result in the time of expensive divorce attorneys
• reducing conflicts during a divorce
• establishing procedures and rules for issues that may arise in the future
• assigning debt, such as credit cards, school loans, and mortgages, to the appropriate spouse to avoid both spouses sharing debt liability.
The timing may not be right. The beginnings of a marriage are typically a time of marital bliss, when many of the issues involved in a prenup are not discussed. You may be at a point in your lives where you don’t yet know the answers to some of the issues in a prenup. The truth is these issues will come up eventually, whether during the marriage or if you divorce. If you think the timing of discussing these issues is bad, or you just don’t have a basis for formulating decisions or answering questions, then the timing may not be right for you.
You can always wait until after you are married, when you may know a little more about the management of your household. An agreement made after you’re married is called a “postnup”. These are enforceable, but be sure to consult an attorney before creating one, because the legalities and enforcement of postnups do vary from prenups.
Also, it’s important to keep in mind what a prenup can and can’t include. A prenup cannot include child support or child custody issues. The court has the final say in calculating child support. The court determines child support based on a “best interest of the child” standard, with several factors at play. A court would never uphold a provision of a prenuptial agreement that dealt with child support.
A prenup cannot include personal preferences, such as who has what chores, where to spend the holidays, or what school the children should attend. Prenuptial agreements are designed to address financially based issues. Judges grow uncomfortable when they see private domestic matters included in a contract, and will often view the document as frivolous, striking it down.
If you’re still not sure if a prenup is right for your relationship, try taking a prenuptial agreement questionnaire. You can simply ask your attorney for this information, or you can find one online. The most important aspect to remember is to communicate with your partner. Deciding to get a prenup is something both of you need to agree on. Also keep in mind that at the end of the day a prenup was made to help a relationship, not break it.
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