Pre-nuptial, Post-nuptial and Separation Agreements

Whether you call it a prenuptial agreement is an agreement in which a couple sets out the rules that will govern their property, debts, income and expenses.

 

  Prenuptial agreements sometimes make sense. A prenuptial agreement allows both spouses to protect their separate property. Otherwise, if one of them owns an asset now and sells it after marriage, the cash may become marital property.

 

  A prenuptial agreement also allows both spouses to protect themselves from the other's debts - those incurred before the marriage and those incurred after. And it may allow them to determine what level of support one of them will provide to the other if they divorce or if one of them dies.

 

  Prenuptial agreements can also address situations in which one partner leaves a secure and fulfilling job to live with a geographically distant spouse. If the marriage doesn't work out, is it fair to just send the relocating spouse back home with nothing? Many people would say not. A prenuptial agreement is a good way to provide for that.

 

  On the other hand, a prenuptial agreement also allows the spouses to agree that everything they own and everything they owe will automatically become shared from their wedding day forward, or gradually as they stay married over a period of years. The flexibility of the prenuptial agreement is its main selling point.

 

  Most people don't do them. They may be prudent, but premarital agreements just don't feel good. It feels like you're giving up on your marriage before you even get started. You're asking two people who are thoroughly in love and convinced that this is a marriage made to last forever to, in effect, negotiate their divorce settlement before they say "I do." Any way you dress it up, that's a real downer for romance.

 

  In addition, prenuptial agreements are expensive. Most of us can finish a will without a lawyer. Many of us can complete a divorce without a lawyer, or at least only using a lawyer as a coach. But it's usually necessary to use a lawyer to draw up a prenuptial agreement that will hold up. For both these reasons, prenuptial agreements are rare. They may be getting a little more common, but they're still rare.

 

  Premarital agreements are not the same as "marital agreements" or "marital settlement agreements". Marital agreements are agreements made between two people during marriage. Marital settlement agreements are agreements made between two married people after a petition for dissolution of marriage has been filed and in anticipation of a judgment of dissolution. While the subject matter may the same, significantly different rules apply.

 

  The motivation of the person seeking a premarital agreement usually falls into one of two categories: (1) the spouse with the assets wants his or her separate property assets protected in the event of a divorce; or (2) the spouse who holds few, if any, assets is giving up a career to stay home and raise a family and, thus, wants to be financially compensated for the loss of his or her career.