Preparing for the end before barely having a beginning is the forethought that puts many couples at odd when considering a prenuptial agreement. However, managing marital state of affairs prior to marriage can bring clarity in a relationship. Protecting personal property or significant assets is a precaution and in no way determines the direct outcome of the relationship. If you are considering writing a prenuptial agreement the following tips may assist you in drafting an effective, non-threatening agreement.
A prenuptial agreement can be bilateral
A prenuptial agreement provides information about both partners. Talking about a prenup can be uncomfortable for an engaged couple. However, once the conversation commences, it does not have to be one-sided. Both parties can protect their interest even where only one party has significant assets. If one party has significant assets, the other may have personal property worth protecting. Further still, if one party is at a burdensome disadvantage, the disadvantaged party can request to have the terms of the agreement construed to be more inclusive. When drafting the agreement, keep the needs of both parties in mind.
Distinguish Shared property and separated property
It is not uncommon for an unmarried couple to own property prior to the marriage. When drafting a prenuptial agreement, outline if and how shared and separate property will be divided. Separate property is defined as property that a party acquired prior to the relationship or engagement, bought solely in his or her name and using his or her funds. On the other hand, shared property is property purchased during the marriage even if only one of the parties is on the title. Generally speaking, shared assets are divided equally if a marriage ends. However, if the terms of the prenuptial agreement stipulate a different course of action, that may be sufficient for performance contrary to the equal division of matrimonial property.
A point of contention in prenuptial agreements is managing debt acquired prior to the marriage. Separate debt is debt acquired by one party and is deemed that party’s sole responsibility. Shared debt is debt accumulated as a couple. In some relationships, parties may agree to take on the separate debt and construe it as a shared debt. However, it is imperative to declare how the debt will be divided if the marriage ends.
Children from previous relationships
When writing a prenuptial agreement, parties with children from previous relationships should specify the care, parental arrangement, and custody of the children in a formal manner. In many cases, couples assume that the non-biological parent will assume guardianship and become a stepparent to the children. However, some relationships are more complex and in those instances, outlining what happens to the children where a marriage ends is beneficial.
Outline what financial support each party can rely on should the marriage end. Spousal support may depend on a series of factors such as the length of the marriage and the age of the parties.
Seek Independent Legal Advice
A prenuptial agreement should make both parties feel as comfortable as possible. Both parties should seek independent legal advice once the document has been drafted to make certain that the terms of the agreement are reasonable and fair and that no individual is under duress to execute the agreement.
In addition, don’t hesitate to ask your lawyer about additional terms that you may wish to include in your agreement. For example, engaged couples sometimes include terms in relation to infidelity. Your lawyer can help you determine which additional terms are valid and which go beyond the scope of the parties’ responsibilities.
Prenuptial agreements can birth emotional tension and distrust between an engaged couple. However, it can also bring forth peace and clarity. Don’t avoid the discussion out of fear or sign an agreement to quickly put the matter to bed. Be open, intentional and clear and it will ultimately benefit both you and your partner