Does a Prenuptial Agreement Lead to Divorce?
Many people think that a prenuptial agreement (also referred to as prenup) means the couple is starting married life with distrust and lack of commitment.
People say it’s an insurance policy that protects against an “inevitable” divorce.
If someone wants a prenup, isn’t the marriage doomed? After all, why would someone worry about sharing assets and debts unless they had some doubts about the marriage or the integrity of one of the parties?
Prenups May Prevent Divorce and Improve the Marriage
I have mediated many prenups. My research and experience indicates that a prenup often reduces the chances of a divorce. It provides a framework and a process to examine sensitive issues such as money and children and to create an understanding and a resolution that is agreeable to both.
A prenup can enhance communications and improve the quality of your marriage. Using mediation to create the prenuptial agreement with a skilled guide may actually reduce the possibility of divorce.
What Is a Prenuptial Agreement?
It is a written contract created by two people before they are married. It typically lists all of the property each person owns (as well as any debts) and specifies what each person’s property rights will be after the marriage.
In essence, a prenuptial agreement overrides the laws that govern estate rights (if one spouse passes away) or divorce and lets the couple set the rules. Because of the timing of the agreement’s creation, those rules are created with good will and love rather than bitterness and anger.
Who Should Have a Prenup?
The intention of a prenup is to be clear about how accumulated assets and debts and future income might be shared, not only in a divorce but also if a spouse passes away. It is especially important if children are involved. With some exceptions (involving trust funds, family businesses, etc.), young adults just getting started in life and marriage may not need a prenuptial agreement.
A prenup is essential for couples who are marrying a second time and have accumulated assets (such as retirement funds or a house) or significant debt from student loans or other sources. This is true regardless of whether children are involved.
Each state has its own rules for prenuptial agreements. Couples should understand the requirements for an agreement before signing, because premarital contracts can have long-term effects.
New York is in the minority of states that haven’t adopted the Uniform Prenuptial Agreement Act (UPAA). Instead, New York state law sets forth the rules and requirements for prenuptial agreements.
Elements of a Prenuptial Agreement
What will be considered separate rather than marital assets if the marriage ends or a partner dies? Designating the house, retirement funds, defined pensions, mutual funds etc, and business values/ownership and the like, acquired prior to the marriage is necessary. The prenup needs to state whether the growth and appreciation from the separate assets shall be considered marital.
What debt was acquired prior to the marriage and who shall be responsible for its repayment? This is important especially because “marital money” (money earned during the marriage) may complicate how future distributions may be made if the prenup is not clear.
The prenuptial agreement includes a complete itemization of all assets and debts. This is required to be thorough and comprehensive and to avoid any misunderstanding in the future of what was intended.
This is an important conversation especially if there is a disparity of income. The conversation generally considers different conclusions depending upon the length of marriage and the intention to help one party reestablish themselves if the marriage ends. The topics of temporary and post-divorce spousal maintenance may also be discussed.
Joint Property and Income
How will the parties create shared marital assets to be excluded from the prenup? What if a recreational home is purchased or a new house is purchased together? What about joint bank and investment accounts? What if a new business is created during the marriage?
The agreement needs to be clear about how each party’s estate shall be managed regarding the distribution of assets and debts and the children’s inheritance options. The prenup sets forth and overrides state laws regarding mandatory spousal distributions.
A prenup does not preclude one party or the other to redefine the terms voluntarily. It also does not prevent one party to gift or in any way provide more than the prenup indicates to the other.
Applicable in All States
Much like a will, the prenup needs to include language such that its terms shall be applicable in any state in which the parties may reside during the marriage or in which either may die.
Many prenups include language to provide an increasing percentage of what was once premarital assets to the other as the marriage progresses through the years. What was once premarital often changes over time as the marriage prevails.
It is considered prudent to create and sign a prenup more than 30 days in advance of the wedding and with even more lead time, if possible. The issue of signing a prenup under “duress” is something that may undermine the ability to enforce the agreement in the future.
Signing and Filing the Agreement
Similar to a mediated Memorandum of Understanding (MOU) for a divorce, it is prudent to have the final version of the prenup processed by an attorney because there is required legal language to make it a binding, enforceable agreement. The agreement is then filed in your local County Clerk’s office to preserve the original document with no misunderstanding regarding what the final terms of the agreement are.
Book: Prenups for Lovers
There is a very useful book, Prenups for Lovers: A Romantic Guide to Prenuptial Agreements by Arlene Dubin, which expands on the details of a prenup and emphasizes the value of clarity and good will when discussing these sensitive issues. The book describes how a prenup can take the worry out of marriage. It explains the value of removing any uncertainty and the importance of clearly stating each’s rights and obligations.
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