Did You Know Your Marriage is a Contract?

Did You Know Your Marriage is a Contract?

June 08, 2017

Most couples, while immersed in the heady whirlwinds of wedding and honeymoon planning, are reluctant to so much as entertain the notion of a prenuptial agreement. Who wants to start a conversation with, “Honey, in case we break up . . .” in the midst of booking caterers and fine-tuning guest lists?

Unfortunately, though, that reluctance can be very costly indeed if the marriage does end in divorce somewhere down the road.

To help make the idea of prenuptial agreements more palatable, I’d like to suggest a different way of thinking about them. Consider that it’s not really a question of whether or not you and your fiancé want a prenup. Rather, it’s a question of which prenup you prefer: one you draw up yourselves through careful thought and open communication, or one that your state government already has in place for you and everyone else, by virtue of its divorce laws?

You see, in this way, a prenup is very similar to a will.

As you probably know, if a person passes away without having executed a will, they are said to have died “intestate.” The government, not family or friends, then decides how the deceased’s property and other assets are divided. Life insurance proceeds, real estate, bank and retirement accounts, stocks – if the beneficiaries of these assets are not specified, the state distributes them according to its specific intestacy laws. The results can be far afield of what the deceased would have wanted, and there’s not much that the survivors can do about it.

It’s the same with prenups.

If you divorce without a prenup your assets will be divided according to the laws of your state, not according to what you believe to be right or fair.

Wouldn’t you rather tailor your financial arrangements to your own individual preferences?

 

Let me give you an example. Suppose you have a work of art, a vacation home, an antique car, or some other item that’s been in your family for generations or otherwise has special meaning and value to you, maybe in excess of its worth in dollars. A prenup can specify that items such as these are to be maintained as your separate property. By that simple arrangement, you no longer risk ever losing it to a settlement agreement that’s based strictly on dollars and cents.

Of course, the reasons to have a prenup are even more compelling if you own your own business or professional partnership. You’ve poured sweat, tears, and years of education and hard work into building your business. Protect it! 

Curious about the details? Here are some specific things you need to know about drawing up a valid prenup:

  • Oral prenups are not valid. A prenup must be written and then executed –ideally, in a recordable format.
  • Each party to the agreement should have their own independent legal representation. This is actually a requirement, in some states.
  • A prenup must be executed voluntarily, and without coercion.
  • There must be full disclosure of assets, liabilities, income, etc.
  • The agreement must be executed by both parties, preferably in front of witnesses (or a notary). Some attorneys even recommend having a judge witness the signing to make sure that neither party was coerced into signing.
  • A prenup cannot be “unconscionable,” meaning too lopsided. If one party is awarded almost everything and the other is to receive a pittance, the agreement is likely to be voided in court . . . however, this point has recently become the subject of much debate.

 

Marriage is many different things to many different people. It can be a loving partnership, a sensible life plan, a pairing of soul-mates, a sacred vow and/or a family arrangement. Whatever cultural, family, religious, social and other variables shape your outlook, one thing is certain:

In the eyes of the law, your marriage is a contract, very much like a business arrangement.

So, as happy and romantic as your life together may be, you and your fiancé do need to approach the financial end of things in that light. You wouldn’t establish a business partnership without first having an attorney draw up mutually agreeable terms. Think of this aspect of marriage in a similar way, and don’t leave it to the state to handle it for you.

Prenups are good for marriages, as well as divorces. Creating a prenup can initiate conversations with your fiancé that will set the stage for open communication about finances through all your years together. Considering how often money is cited as a cause of marital strife, this puts you way ahead of the game! In fact, thinking about what you’d do in case of divorce might help prevent your ever getting one –and perhaps that makes the “Honey, in case we break up. . . “ conversation the most important part of your wedding plans.



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