A prenuptial agreement is a contract between two people. It specifies the assets and liabilities that each party brings to the marriage and determines what each party's property rights will be in the event of divorce. Prenuptial agreements also play a role in determining marital property rights after the death of a spouse. Thus, a prenuptial agreement can be used to protect the financial interests of the married couple as well as their heirs.
Is a Prenuptial Agreement right for you?
Every couple's financial situation is unique. Prenuptial agreements don't necessarily suit every couple. For some couples, the default divorce and property laws of their state fit their needs and therefore they see no need for a prenuptial agreement.
Couples who do opt for a prenuptial agreement usually do so for one or more of the following reasons. If any of these circumstances apply to you a prenuptial agreement may be advisable.
You Are Significantly Wealthier than Your Spouse -- A prenuptial agreement can protect your existing wealth.
You Earn Significantly More than Your Spouse-- In many states, a prenup can be used to limit the amount of spousal support (alimony) that is payable following a divorce. It should be noted, however, that if a judge considers your spousal support arrangements to be punitive or unfair they can can be thrown out by the court.
You are Remarrying -- Without a valid prenuptial agreement in place your children from a previous marriage may not be provided for according to your wishes.
Your Estate Planning Requires It -- A prenuptial agreement can ensure, that following your death, your assets will be distributed according to your wishes and not subject to default state property and marital laws that automatically earmark certain amounts to a surviving spouse.
It is well understood that discussing prenuptial agreements isn't particularly romantic. But it doesn't need to be confrontational either. As adults, you should be able to sit down and discuss your future together calmly and honestly.
Deciding you want a prenuptial agreement doesn't mean that you do not love your partner or that your planning for the day that you will want to leave them. Prenuptial agreements are simply financial management and estate planning tools designed to protect you and your spouse, and by extension your family.
Each of you should have your own lawyer to assure that each of your interests are represented fully and fairly. Prenuptial agreements can be closely scrutinized by the courts, and the presence of independent counsel for each party is the best indication that the contract is fair, and that both parties have entered into the agreement in good faith, and with adequate legal representation. When you're ready to proceed be sure to retain experienced legal counsel.