One of the biggest misconception people have about prenuptial agreements is that they only matter to people with wealth, which is not the case. If a prenuptial agreement does little more than identify the separate property owned by the parties at the time of their marriage, that can be enormously helpful in the future. When and if they have to sort those properties out in a divorce or a death. With a prenup, they have an agreed record as to who owned what going into the marriage, making later division easier and faster.
Does Each Party Need An Attorney?
Another misconception is that prenuptial agreements can be done by a single attorney acting for both parties. While that’s legally permitted, in almost every circumstance an attorney will only agree to represent one party and will require that the other party has his or her own independent attorney to ensure that the agreement is fully enforceable and can’t be challenged or set aside based upon inadequate representation of either party.
Another reason each party needs an attorney is because there are numerous provisions in the law that make the agreement not enforceable if both parties do not have independent legal representation. Prenuptial agreements address many legal issues that will not be readily apparent such as spousal support waivers to the parties if they try to draft it themselves. The attorneys will force couples to face unpleasant or difficult issues that they probably would ignore without attorney pushing them.
What is Typically the Most Difficult Issue in Negotiating a Prenuptial Agreement?
Usually, the most difficult issue to negotiate is spousal support. It’s a sensitive issue, especially if one or both of the parties have been through a divorce previously. For instance, a party who has been required to pay spousal support from a prior marriage may be very reluctant to put himself or herself in a position to acquire another potential spousal support obligation later on.
A stay at home spouse may be concerned about waiving or limiting spousal support because he or she earns less. The stay at home spouse may not want to be put in a position in which he or she spends years staying home and taking care of the children or making career sacrifices for the other party, only to find himself in a position in which he or she doesn’t have sufficient economic means after a divorce.
The other reality of spousal support is that so long as both parties are separately represented in negotiating an agreement, the parties can agree to waive spousal support such that neither party will have a support obligation to the other in the event of a divorce. This is often a motivating factor for the party seeking the prenuptial agreement.
Can a Prenuptial Agreement Be Signed After Marriage?
If it’s signed after marriage, it becomes a post-nuptial agreement. The difference is that once the parties are married, they become fiduciaries to each other, meaning they have a legal obligation to advance the other party’s best interest ahead of their own. This would include negotiating a postnuptial agreement. A post-nuptial agreement is negotiated in an entirely different atmosphere, with the parties having greater legal responsibilities to the other spouse with regard to fairness and so forth. This is why it’s always better to have a prenuptial agreement.
Can a Prenuptial Agreement Protect My Children and Grandchildren?
Even though a prenuptial agreement by law can’t determine in advance issues of child custody or child support, it can make provisions for spousal support. For instance, it can give a mother sufficient economic wherewithal to not have to work full time in the future and to allow her more time to stay at home with the children. It’s not intended primarily to protect the children and grandchildren, but its terms can have the effect of giving them greater protection later on.
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