Some people have the misconception that prenuptial agreements set the stage for divorce before the marriage ever occurs. However, these contracts have far more value than pre-determining who gets what in a divorce.
Many couples avoid talking too much about money before they get married. That is not the best way to enter marriage. Disagreements over dollars are often cited as a contributing factor in divorce.
Transparent conversations about finances and responsibilities help couples avoid some of these arguments after they marry. Honest discussions about money, assets, and debt that occur during the creation of prenuptial agreements can defuse future marital spats.
Prenuptial Agreements Benefits All Income Brackets
Another misconception is that prenuptial agreements are only necessary when great wealth is involved. Regardless of a checking account balance, all couples benefit from establishing shared financial goals and understanding their responsibilities for debt and everyday expenses.
The median age of first marriages has steadily increased since 1998. In 2021, the median age for men was 30.6 years. The median age for women was 28.6. That is about four years later in life than 25 years ago. Later-in-life first marriages result in more spouses entering the marriage with property.
A prenuptial agreement can ensure that a car, a rental house, an inheritance, or other assets remain separate property and not included in the marital estate. The agreement can define the responsibility for debt brought into the marriage, such as a student loan or a mortgage.
What Can and Cannot Be Included in a Prenuptial Agreement
A comprehensive prenuptial agreement outlines far more than simply how the property would be divided in a divorce. Your attorney from Jason M. Barbara & Associates, P.C. will tailor the contract to meet the specific needs of you and your prospective spouse.
A prenuptial agreement can identify rights and responsibilities during the marriage:
- Identifies what property remains the sole asset of each person
- Names any property coming into the marriage that should be included in the marital estate
- Outlines any continuing responsibility a spouse may have for a child from a previous relationship
- Determines whether the spouses will maintain separate and/or joint bank accounts
- Designates a percentage of income that goes into savings
- Assigns the responsibility of certain household bills to each spouse
- Includes other matters as long as public policy or law is not violated
- Obligates each party to draw up a will to ensure provisions of the agreement are carried out if a spouse dies during the marriage
- Decides temporary arrangements if the couple separates
- Settles the question of whether alimony will be paid
A prenuptial agreement cannot predetermine certain separation or divorce matters:
- Child Custody and Parenting Plans
- Child Support (unless it would be over the amount required by law)
A judge will not enforce a prenup if the document contains unfair or unreasonable terms. The agreement cannot include provisions that promote divorce.
Modifications of Prenuptial Agreements
Once the prenuptial agreement is signed by both parties and notarized, the document becomes a legally binding agreement. Changes may still be made to the agreement before the marriage takes place. If both sides approve, and the new document is notarized, a modified prenuptial agreement will supplant the original. The prenup can also be revoked by mutual agreement. Any prenuptial agreement is void if the marriage does not occur.
After the marriage, any changes to a prenuptial agreement must be made in a postnuptial agreement. This after-marriage contract is like the premarital contract except for when it is drafted. As circumstances shift, the agreement can be changed if both sides agree. A postnuptial agreement invalidates a premarital contract.
Couples who do not draft a prenuptial contract can use the postnuptial agreement to outline financial and other responsibilities in the marriage. If a spouse opens a business, for example, a postnuptial agreement can keep its assets from potentially becoming fuel in a potential divorce.
Learn More About Prenuptial Agreements Before Walking Down the Aisle
In the era of post-COVID lockdowns, couples who put off saying their I-dos are again choosing to take the marital plunge. Before becoming spouses, our team at Jason M. Barbara & Associates, P.C. can explain how a prenuptial agreement can benefit you.
Learn more about prenuptial agreements by scheduling a consultation. Contact us online or call (516) 406-8381.