Anyone can get a prenuptial agreement; there is a strong argument that everyone should get one. A prenuptial agreement is a contract between two people who plan to marry. It is an agreement that sets out terms of distribution of certain assets in the event of divorce or death. Everyone should have one because without it, the courts may decide the distribution and it will be by public proceedings. Despite the high rate of divorce and separation, relatively few couples use prenuptial agreements. Various estimates conclude that only 5-10% of marriages have prenuptial agreements.
There are many theories and sets of advice about who might need a prenuptial agreement. Since most legal advice is for sale, it is not surprising that the advice centers on the wealthy. However, a person who has struggled mightily to save a few thousand dollars might feel it important to protect it. That is the key; a prenuptial agreement is useful for protecting things one wishes to keep away from control by others.
Among many other situations, a prenuptial agreement is advisable when:
- One person has much more wealth than the other does;
- One person, such has a medical student intending to practice medicine, expects to become much wealthier than the other does;
- Conversely, one spouse will support the other while he or she pursues a licensed profession;
- An event may occur, such as publication of a book or music recording that will produce sudden wealth; or if
- One or both parties have children or grandchildren by previous marriages.
When making an agreement, one should bear in mind that courts will overrule the terms of agreements that would prescribe an unfair situation or leave one party in need of support. In the field of family law, courts have strong policies to protect children and a weaker spouse. Courts will apply these policies in proceedings to deny a prenuptial agreement that appears to be unfair. The Uniform Premarital Agreement Act (UPAA) recommends a standard of fairness determined at the time of the agreement. Common law policies would examine the entire circumstances including the time of enforcement of the terms
Creating a prenuptial agreement
Creation of a prenuptial agreement requires some formality. In order to be enforced, it must:
- Be in writing and witnessed;
- Be kept in a place where it can be found in the event of death or disability of a party; and
- Be on behalf of parties, each with advice of legal counsel; and
- Be fair and regular on its face and not the product of one overriding the will of the other.
A prenuptial agreement can afford privacy to matters that would otherwise be resolved in a public court proceeding. However, where there is conflict with terms of a will, many courts follow a policy of giving effect to a Will if more generous of the two documents. A duly executed Last Will and Testament, which grants more to a spouse, will usually supersede a prenuptial agreement.
While the parties can write the document, it is preferable to have an experienced family law attorneys create the document. Each party should have their own legal counsel. The attorneys should collaborate on the final document. Each attorney can protect client interests. The prenuptial agreement is not a contest but a mutual acceptance of terms, yet there clearly are different interests involved.
Once written, one should review the prenuptial agreement from time to time. Assets may change, and the choices of either party may change. If changed, the parties must execute the modified agreement by the same methods of its creation, each party having advice of counsel and witnessed signatures.
Seek prenuptial agreement advice from top Colorado Springs divorce lawyers
Always consult with a divorce lawyer for legal advice about any prenuptial agreement situation. You can call 719-633-2222 to schedule a free consultation with a Colorado Springs divorce lawyer at Maceau Law. Consultations are private and can even be completed over the phone. There’s no obligation.
Harvard Law Review
“Why Are There So Few Prenuptial Agreements?”
By Heather Mahar
American Bar Association Journal
Volume 19, Number 6. September 2002