What Exactly is a Premarital Agreement?
A premarital agreement, often referred to as a prenuptial agreement, is simply defined as a contract between intending spouses which they execute in consideration of their intended marriage, and which is made enforceable by statute. It is not, however, the only marital or domestic contract the law provides for. We also have postnuptial agreements, antenuptial agreements, settlement agreements and separation agreements. Despite the different forms, they all share similar general concepts. Premarital agreements in particular date back centuries to long before enactment of any statute, and they are based on doctrines of common law equity. They became statutory in each state only after the mid-1980s, when uniformity on this subject for the first time emerged via the Uniform Premarital Agreement Act promulgated by the National Conference of Commissioners on Uniform State Laws in 1983 and 1984. The purpose and concept now universally accepted is to provide parties having capacity to contract the opportunity to enter into an agreement prior to their marriage, which is valid, binding and enforceable.
The parties may agree to almost anything they desire relating to contractual rights and other legal obligations in their future marriage . Family law attorneys who represent clients in these matters even encourage clients to include as many matters as possible within a prenuptial agreement. Common provisions include alimony waivers, waivers of statutory and common law rights of election and distribution, waivers of inheritance, waiver of rights of dower and other property rights, and waiver of rights in the event of divorce, as well as provisions regarding rights of custody, support, visitation, and division of property. It is much easier to agree on these matters prior to marriage because they have not then yet become embroiled in emotional issues that arise within a marriage, and then mixed together.
The primary result obtained from the execution of a prenuptial agreement is protection of individual assets, both owned prior to and after marriage through inheritance or bequest. Simply put, it allows a spouse the individual right to retain the asset, not involving commingling or other factors which might shift its protection. There are many reasons why a party may feel the need to retain separate property, be it for purposes of business security, maintaining individual family wealth, or with children from a prior marriage or relationship.
The Value of a Premarital Agreement Attorney
Although many couples feel comfortable discussing the division of assets prior to walking down the aisle, you should consider hiring an attorney to draft your premarital agreement. An attorney’s experience and keen understanding of the law will help you avoid mistakes that could render the contract unenforceable later on.
A savvy premarital agreement attorney will be able to balance the contract so that both partners come out smiling when the engagement is over and the wedding begins. While the average engaged couple may be able to agree peacefully on the division of assets if the relationship is successful, they may fail to realize that an agreement is likely to be called into play if a divorce is on the horizon. You can avoid the problem of a broken agreement by consulting with a knowledgeable family law attorney so that he or she can draft an enforceable contract that leaves little or no room for interpretation.
When drafting a premarital agreement, you and your spouse-to-be will need to determine which assets should be included. A good attorney will help you decide, taking your individual circumstances into account. Some people might want to include a state lottery win as a possible future asset whereas some people wouldn’t think to include this scenario as part of their premarital agreement. Making the decision that would be best for you and your spouse-to-be is often difficult, but an attorney will frequently offer examples of common ways in which these decisions are made.
Elements of a Premarital Agreement
When prenups are enforced, the final agreement typically addresses how the assets and debt will be divided in the event of a divorce. Those assets may include bank accounts, financial securities held, real property, interests in a family business, and any anticipated inheritances or gifts from others. Some couples may include specific provisions addressing spousal support in the event of future divorce (to address the possibility of a lengthy marriage at the time of legal separation). Other premarital agreements are more comprehensive and may contain clauses on activities not typically addressed in divorce court, such as a clause that awards a set portion of assets to children from a previous marriage should the couple get divorced. A premarital agreement may also designate the division of responsibility for certain debts (perhaps for student loans or court costs or attorney fees) or it may exclude certain assets or liabilities from the final calculation. If the agreement is drafted properly, these provisions will be enforceable.
Common Myths Surrounding Premarital Agreements
Myth 1: Premarital agreements indicate that a couple lacks trust.
It’s true that in the wake of a divorce, premarital agreements act as an excellent tool to determine and divide property equitably. But this is not the only reason couples utilize them. Premarital agreements can promote trust leading into a marriage and provide the opportunity to discuss and agree upon future goals. They also eliminate the potential for conflict over property issues later in life, she says. "Anything we’ve seen where the agreement prevents the court from dividing property, that’s really rare . Really, we see it as restraining what the parties have to litigate when their marriage ends."
Myth 2: Premarital agreements are only for the rich.
Some might assume that premarital agreements are only necessary for high-net-worth individuals, but this isn’t true, according to Greenan. "I see clients that are teachers, police officers; I even have civilians with the military that come through and think, ‘Oh, I’m not wealthy enough to have a premarital agreement.’ [But they] have inheritances coming in and want to protect against that."
How to Select the Best Premarital Agreement Attorney for You
Once you and your partner have decided that a premarital, or prenuptial agreement, will be beneficial to both of you in the event that your relationship should eventually end, then the next step will be to find an attorney who is experienced in Massachusetts family law, specifically in drafting premarital agreements. You don’t want just any attorney; you want one who has years of experience behind them, and a specialty in negotiating and drafting premarital agreements. As part of that vetting process, you should consider how someone treats you and handles all interactions from the very start, as this is very important when going through the legal process. Communication is key, and being treated with respect and dignity is paramount. As you prepare for such a life changing event like a marriage, the last thing you need is aggravation and annoyance, and this is why it is so important to find an attorney who respects you, and who indeed knows our laws and can steer you in the right direction to help you and your spouse-to-be draft a future agreement that will end up being fair for both parties.
Your attorney choice will also be important should your premarital agreement end up being disputed, and again, a family law attorney who has significant experience in litigating such cases will be a valuable asset.
Legal Guidelines for Premarital Agreements
The lawyer who prepares the premarital agreement needs to be familiar with the various state laws that may apply. Requirements for a premarital agreement vary from one state to another. In some states, such as New York, for instance, both spouses need to be represented by separate attorneys and have ten days to review the document prior to signing it. Generally speaking, premarital agreements need to be in writing (a number of states do not require notarization). However , the requirements for execution are not as stringent as the requirements for postnuptial agreements, which require consideration and execution at a time when the parties are not contemplating divorce. Indeed, many states require so much more, including a demonstrated understanding of contract law, than is necessary for a premarital agreement because the mere fact that the marriage takes place is often deemed adequate consideration for entry into the agreement. By contrast, in a postnuptial agreement, the only consideration is the intention to remain married.