Nuptial agreement contracts have been over televised with “this is mine, you have nothing” legal mumbo-jumbo. A Nuptial agreement provides for certain securities for both parties and they MUST BE REASONABLE or they are invalid. This prevents one side from having all the fun while the other pays all the bills.
The Litmus Test
A test has been established by legal professionals that gives a litmus or judgement test to prenuptial and post-nuptial agreements. This looks at both parties and asks simple questions to see if both parties understood their agreement, everything was disclosed, best effort taken to account for future possibilities and is the agreement fair to both parties.
- Were all pre-marital assets and debts disclosed?
- Did the parties discuss how to handle children?
- Inheritance and Family Farm or other generational issues disclosed?
- What reasons for separation or divorce were discussed?
- Did parties agree to pre-divorce counseling?
- What conditions allow for less than equitable division of marital assets or debt?
- What are assets or debt will be claimed by each party?
- Was the agreement fair at the time and is it fair now?
This does not mean you outline your divorce, as this is not possible but establishes protection for the parties on certain key issues, if certain conditions are met.
If you have ever watched “How I Met Your Mother” where everyone is writing nuptials agreements, you see a lot of garbage and innuendos that are not applicable. First, you cannot make provisions for penalties, charge fees or claim every dollar in the bank accounts. Further, support for children cannot be discharged, custody cannot be automatically granted and you cannot evict the other party without due process.
What do Nuptial Agreements Do
Nuptial agreements are intended to reduced loss of pre-marital assets or generational assets from leaving the family or protection from greater loss of assets or provide for children’s college or special needs, if the couple divorce. There are also conditions that take place to activate nuptial agreement, like infidelity or incarceration or abandonment.
Common Nuptial Agreement items
- Family farms or generational assets
- High income protection for short marriage
- Inheritance (cash, assets, property) protection
- Reasons that activate the nuptial agreement
- College or graduate school costs / debt
- Infidelity / substance abuse protection
Two Types of Nuptial Agreements
Prenuptial agreements are the most commonly known and take place before the couple marries. The parties sit down and make agreements on key issues they want protected. This can be possible future inheritances or gifts or debt that will be brought into the marriage.
Post-nuptial agreements take place after the couple has been married and normally come about due to a life changing event. Most commonly we see these when an inheritance has come about or relative desires to bequeath money or property to a person.
Nuptial agreements are NOT intended for couples that do not trust each other. If you’re having trust issues before you’re married, please consult a relationship counselor before getting married.
To avoid unforeseen issues, we recommend that parties retain separate attorneys to look over and make any final recommendations to the nuptial agreement once the parties finalize their agreement. This allows the couple to get legal counsel without all the expense of an attorney mediating the conference, writing the document and making changes. Please note: using the same attorney may create ethical issues for the attorney, so separate attorneys are strongly recommended.
If you’re contemplating marriage and have questions or concerns of protecting certain things if the dreaded “D” word happens. Give us a call or email. We will be glad to assist you.