Are you considering a prenuptial agreement between you and your spouse-to-be? Make sure you know the facts about this legal document before you decide for or against a prenuptial agreement.
1. The reasons to obtain a prenuptial agreement vary.
Many people have preconceived notions about what it means to sign a prenuptial agreement with their spouse-to-be. However, there are many different reasons people choose to secure a prenuptial agreement before entering into a marriage.
A prenuptial agreement is a document created and agreed upon by two parties prior to the officiating of their legal marriage. Essentially, a prenuptial agreement protects each party’s individual interests. Though, it focuses on how parties will divide assets, debt, and income should either or both choose to pursue a divorce, premarital agreements can also include provisions that detail what financial responsibilities each party has during the marriage as well as information on alimony and terms concerning child support upon divorce or separation. It is important to note that the court will not enter child support terms from a prenuptial agreement that are not in the best interests of the minor children that you and your spouse have together.
Did you start a business before you met your spouse-to-be? Were you married before? Do you have children from another relationship? Do you already have a solidified estate plan? If you answered “Yes” to any of these questions, you may want to consider obtaining a prenuptial agreement. Parties that agree to a premarital agreement may contract with respect to mutual property rights and obligations; rights to acquire, manage, and dispose of property; disposition of property on separation, dissolution, or death; modification or elimination of spousal support; wills and trusts; and death benefits from life insurance policies. These are all reasons couples decide to arrange a prenuptial agreement before the commencement of their marriage.
2. Timing is very important when introducing a prenuptial agreement to your spouse.
Some prenuptial agreements have been considered null and void if one spouse is presented with the documents within a small time of the wedding. A common claim of duress (a circumstance of coercion or intimidation which would render the agreement void) is based on an allegation that one party did not have sufficient time to consult with a lawyer and was presented with the agreement within days or hours of the wedding. In a typical case, presentation of an agreement a few weeks in advance of a wedding may be deemed sufficient. Plainly stated, the earlier you present the prenuptial agreement, the better.
3. Both parties should have separate legal representation before signing a prenuptial agreement.
Prior to signing a prenuptial agreement, each party should have access to independent legal counsel so that they can be fully advised of their rights, responsibilities, and consequences of the prenuptial agreement. Each party is typically considered to have had access to independent legal representation if:
(1) before signing a premarital or marital agreement, the party has a to:
(A) decide whether to retain a lawyer to provide independent legal representation locate a lawyer to provide independent legal representation, obtain the lawyer’s advice, and consider the advice provided, and the other party is represented by a lawyer and the party has the financial ability to retain a lawyer or the other party agrees to pay the reasonable fees and expenses of independent legal representation for the spouse. Uniform Premarital and Marital Agreements Act, Section 9(b.)
The reasonability of time will vary; however, it is that customary for the partner who is presenting the prenuptial agreement to do so at least six months preceding the wedding day.
4. Prenuptial agreements protect both parties’ with regard to each spouses’ assets and financial status.
Each party must fairly and truthfully disclose their respective financial status and other material information; the division of property in the event of death or divorce must not be unfair*; and the terms of the agreement may not otherwise be unconscionable at the time it is entered into or in some jurisdictions, at least as to support obligations, at the time of dissolution.
*Note: Sometimes what is deemed fair at the time of signing is not fair at the time of the divorce. With regard to time, prenuptial agreements should be updated as assets and liabilities change through the years of the marriage.
Our law office is located in Memphis, Tennessee, but we also serve Bartlett, Germantown, Collierville, Millington, Shelby Forest, Shelby Farms, Lakeland, Fisherville, Arlington, and Rosemark, Tennessee.
This information is for advertising purposes only. It does not constitute legal advice, create an attorney-client relationship, or guarantee particular results.