Two significant misconceptions about premarital agreements (also referred to as prenuptial agreements or “prenups”) deserve second looks. When they get brought up, many assume that the monied spouse (or the one with a more substantial income) wants to protect themselves. Another topic raised is that premarital agreements are for people already anticipating the possibility of divorce before marriage. We will spend the rest of this blog breaking down the first point, but the second is essential too.
Being prepared for the possibility of divorce doesn’t mean you want one. For example, Fraser, Wilson, & Bryan, P.C., draft our clients’ medical and durable powers of attorney powers. These are fundamental documents that are primarily connected to incapacity planning. Although you may never have to use these documents, that doesn’t make them any less important and necessary. The same applies to a premarital agreement.
Premarital Agreements Aren’t One-Sided
Before you sign a premarital agreement, you should have legal counsel. Both spouses should have an attorney advising them about what they’re signing and the ramifications of it. Furthermore, when your attorney reads it, they may advise you not to because they can negotiate more favorable or equitable terms. For example, it may contain language that you are waiving your ability to pursue alimony during your divorce. (This will never apply to child support.)
A premarital agreement may allow you to keep the assets that you had when you entered into the marriage. The money in your savings account before getting married is separate property. When you add money from your spouse into that count, you are commingling assets. Or you may have added your spouse’s name to that account. Separate property can become marital property quickly. After several years of marriage, you and your spouse will likely accumulate an extensive amount of assets, and it may be complicated to show what is separate and what is shared. During a divorce, you and your attorney must provide clear and convincing evidence that an asset has remained separate from your marital ones. This can be very challenging to prove, but a prenuptial agreement can identify your personal assets to ensure you keep them even after a divorce.
Protecting Yourself, Your Spouse, & Your Children
Imagine you have two children and get divorced. If and when you remarry, you want to ensure your children are cared for should you pass away. Although this is an excellent reason to have an estate plan, it also shows how vital a premarital agreement can be. Skilled attorneys can draft a premarital agreement to protect your children’s inheritance rights. Sometimes, people don’t possess either a premarital agreement or an estate plan. Many of their assets pass to the surviving spouse when they pass away. Because the surviving spouse will have the assets titled in their name after they pass through probate, nothing obligates them to give them to the children you had from a previous marriage. Again, you can prevent this through deliberate estate planning or a premarital agreement.
Should you pass away unexpectedly, there could be a fight over your assets. Have there been instances where children have tried to force a surviving spouse out of a house? Absolutely, and this situation can also be avoided through a premarital agreement or a well-drafted estate plan.
Speak with an Attorney at Fraser, Wilson, & Bryan, P.C.
The common thread is that you have many legal tools to protect yourself and your loved ones if you get injured, pass away, or get divorced. Signing a premarital agreement can be in your best interest if you have legal counsel advising you. Fraser, Wilson, & Bryan, P.C., prenuptial, postnuptial, and estate planning. Contact our office to schedule your free consultation.
