Till Divorce Do Us Part: Prenuptial Agreements
By: LawInfo
Published: 07/2009
One third to one half of marriages in the United States end in divorce. Many couples who divorce had the intention of staying together for their entire lifetimes and then the circumstances changed and instead of parting at death, the couple parted ways in divorce. Since divorce is such a common way to end a marriage in the United States, couples who are engaged to be married should prepare themselves for the possibility of a divorce. Many couples, for example, chose to execute prenuptial agreements in advance of their marriage. Prenuptial agreements become very important if the couple decides to divorce and do not adversely affect couples who decide to stay married.
Financial arrangements may be Included in a Prenuptial Plan
A prenuptial agreement is primarily designed to arrange for the business or financial affairs of a couple if they decide to divorce. For example, a prenuptial agreement can legally keep certain property of each spouse separate. That property can include almost anything such as interest in retirement accounts and insurance policies, a family heirloom, a family home or a family trust.
In addition to protecting certain property from going to an ex spouse, a prenuptial plan can protect a spouse from being legally responsible for an ex spouse’s debt that was accumulated in his or her own name prior to their marriage. This type of provision can be very useful if one spouse has a significant amount of debt and the other spouse does not. It can protect the financial stability and future of the spouse who is not in debt.
A prenuptial agreement can also limit or eliminate spousal support or alimony in the event of a separation or divorce. However, many states limit this right if the lack of alimony would be unconscionable or to the extent necessary to prevent a spouse from being eligible for public assistance.
Personal arrangements may not be Included in a Prenuptial Plan
While a premarital plan can be very useful for dividing assets and detailing a financial plan, it is not an appropriate vehicle for personal arrangements. Many states have explicit statutes, for example, that prevent a couple from deciding issues of child custody, child visitation and child support in a prenuptial agreement. That is because a child’s best interest must prevail in any child custody or child support situation. It is not possible to create a prenuptial agreement that will accurately predict what is in that child’s best interest at some unknown future time when a divorce might occur. It is also not up to the parents but rather to the Court to make the final determination of what is in the child’s best interest if the parents do not agree.
Additionally, a prenuptial agreement cannot force either party to commit an illegal act nor can it encourage divorce. The purpose of a prenuptial agreement is to define how the financial and property interests of a couple will be divided should the couple divorce. It is a very useful document in that regard but couples should be aware of what can and cannot be included in a prenuptial agreement so that the agreement will be upheld and deemed enforceable should they need it.
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