Wedding Bells Ringing: Time to think about a Pre-Nuptial Agreement

You and your future spouse are now starting to plan your life together and will soon legally marry to become man and wife. Are there personal or family situations that should be legally addressed to enhance future happiness? What can make your legal transition easier?

More and more couples are signing prenuptial marriage agreements. The spouses are not just couples dealing with financial inequality or couples of great wealth. They are couples who want to put all their financial cards and related issues on the table before they walk down the aisle, often to avoid potentially great expense and prolonged painful litigation should the marriage fail.

Once you have decided to set up a Pre-Nuptial Agreement now where do you begin?  You need to find knowledgeable attorneys who can help you with the preparation of the agreement.  Attorneys?  Yes! Both you and your fiancé need separate attorneys to make sure you both are fairly represented in this marital contract. This is a very serious agreement and should be considered a legal binding contract never taken lightly. Many couples wake up from their sweet wedding dream to find that the pre-nuptial agreement is far from what they wanted or thought it would be.

How to get started on your Pre-Nuptial Agreement?

1. You both must decide what goals you wish to accomplish in this agreement and what will make this marriage and your other responsibilities work for you.  Will this agreement be confidential between the two parties involved in the agreement?

2.  Will this agreement be a deal breaker between the couple, if an agreement can’t be reached?  As a couple, there should be a discussion on what is acceptable for each party before the attorneys are contacted.  If an agreement cannot be directly reached between a couple, can an agreement forged with the help and counsel of the attorneys?

3. A pre-nuptial agreement should reflect  the needs and expectations of the future Mr. & Mrs. Make sure that both your lists are included and be willing to negotiate with your partner on what is and isn’t important to each of you.  One partner can’t be the winner and the other the loser! This is a true pathway to a future divorce! When you reach a reasonable agreement, the attorneys will provide the work and legal wording to establish a binding marriage contract.

4 What about future earnings of each spouse?  Most premarital agreements are set up to reduce the community estate.  What is more import to the couple: salary or other income, such as stock dividends, income from a business, real estate rents, or bank interest?

5. Many couples agree to give the non-monied or lower income party a signing bonus, such as a lump sum of money for giving up their right to future earnings that, without the agreement, would go into the community fund.  This is an important feature of a pre-nuptial agreement that may help both parties more comfortable with the agreement.

6. Many pre-nuptial agreement may also include an exit bonus in case of a potential contested divorce.

7. The expiration clause is another feature that appears in a number of pre-nuptial agreements. The agreement would expire after a certain term or condition was met. Examples could be an anniversary date or birth of a child or anything that is important enough to change or terminate the terms of the marital agreement.  This expiration could affect property rights and the characterization of property acquired after the term or condition.  When setting up a pre-nuptial agreement, it must be decided if the law at the time of execution or the law at the time of dissolution or death will control.

8. Many couples may use a financial structure of payments to the non-monied spouse in the premarital agreement that would relate to number of years married or numbers of children the parties have during the marriage.  Incremental Payments are used as an incentive for increased satisfaction of marriage goals during the marriage. This can also be used as a lump sum of money previously agreed upon in the event of a divorce.

9. Many times there will be a Minimum Stand of Living Clause in the agreement.  If there is little or no community property to support the party’s lifestyle, a contractual obligation of support during the marriage can be paid from the monied spouse’s separate estate. This would allow the non-monied spouse to live a very good lifestyle during the marriage by agreeing not to contest the property agreement in a divorce. Both spouses would enjoy an additional comfort level in the property agreement.

Last, but definitely not least…..

“The Poison Pill” Clause: What could this be?  As an incentive to both parties, an “exit bonus “could be paid to the non-monied spouse in the case of divorce if the non-monied spouse would waive any contest of the agreement.  The agreement would clearly state that if the non-monied spouse contests the validity of the agreement, he or she waives any and all rights to receive benefits under the “exit bonus” clause.

With the combination of the “exit  bonus” and “poison pill” clauses there are additional incentive for both parties to abide by the terms of the agreement in the event of a divorce.

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