The 411 On Pre-Marital Agreements

 

It seems that more people are getting married later in life than ever before.  Years ago, when people married at younger ages, most had not yet established themselves and didn’t have property prior to their marriage.  Now that the average age for a first marriage in the United States is into the very late twenties and early thirties, marrying parties are more concerned about protecting their property in their marriage.  That is where a pre-marital agreement can be very helpful.

Pre-marital agreements (formerly called “pre-nuptial” agreements) are contracts that parties enter into upon marriage which dictate how they would like to divide their assets should they decide to dissolve their marriage.  Pre-marital agreements have become more popular in recent years due to the increase in the average age of marriage in the United States. Pre-marital agreements are also very common in second or third marriages, where parties want to protect their assets in the event of dissolving their marriage, usually to ensure that they have property to take care of children from previous relationships or marriages.

Here is an example of when a pre-marital agreement might be useful:  Donna and David were married for ten years and have two children, Jackie and Johnny, who are 10 and 6 years old.  Donna and David decide to get divorced, and determine that Donna will keep the parties’ marital home so that she can reside there with Jackie and Johnny.  A few years later, Donna is engaged to Mickey, who plans to move into her home.  Donna wants to ensure that should she and Mickey dissolve their marriage in the future that the home she is living in remains hers, so that she and the children won’t have to move.  A pre-marital agreement could help Donna effectuate this goal.

There are a few things to be wary of with pre-marital agreements.  First, they are not always entirely enforceable.  There may be portions of the agreement that a Court won’t enforce when a marriage is later dissolved.  You and your future spouse can agree to whatever terms you would like, sign a pre-marital agreement and believe that you want to be bound by those terms.  However, once you file for divorce, a Judge may disagree with the terms you have agreed to and find that enforcing them would be unconscionable, and in that case, the Judge may choose whether or not to uphold certain provisions.  Second, pre-marital agreements almost always only deal with property division.  Issues such as custody and other child-related issues (regarding the children that are not yet born) are usually left out of pre-marital agreements because there is uncertainty as to the enforceability of these provisions.

The lesson here is that a pre-marital agreement may be beneficial to parties that are seeking to keep what assets they have before marriage should the marriage later dissolve.  Many people look at pre-marital agreements negatively; however, they can be a very useful tool and create some certainty in a situation that married couples don’t want to find themselves in.  If you are interested in having a pre-marital (pre-nuptial) agreement drafted, or, if your partner has had one drafted and you need it reviewed with you before you sign it, please feel free to call our office to schedule a consultation.

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