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Prenuptial Agreement
A prenuptial agreement (also known as a pre-marital agreement) is a written contract between a bride and groom-to-be that sets out to agree on how their assets are distributed (or remain theirs) should their marriage fail.
A similar agreement called a postnuptial agreement is signed after a couple is already married. Domestic partners may also have a cohabitation agreement.
Why Prenuptial Agreement?
Getting a prenuptial agreement is particularly important in these 8 cases:
1. You are much wealthier than your partner. A prenuptial agreement can ensure that your partner is marrying you for who you are, and not for your money.
2. You earn much more than your partner. A prenuptial agreement can be used in many states to limit the amount of alimony that is payable.
3. You are remarrying. When you remarry, your legal and financial concerns are often very different than in your first marriage. You may have children from a previous marriage, support obligations, and own a home or other significant assets. A prenuptial agreement can ensure that when you pass away, your assets are distributed according to your wishes, and that neither your first family, nor your new family are cut off.
4. Your partner has a high debt load. If you are marrying someone with a significant debt load, and don't want to be responsible for these debts if your marriage ends, then a prenuptial agreement can help ensure that this does not happen.
5. You own part of a business. Without a prenuptial agreement, when your marriage ends, your spouse could end up owning a share of your business. Your business partners may not want this to happen. A prenuptial can ensure that your spouse does not become an unwanted partner in your business.
6. To prevent your spouse from overturning your estate plan. A prenuptial agreement can ensure that you estate plan works, and, for instance, ensure that a specific heirloom remains in your family.
7. You are much poorer than your partner. Just as a prenuptial agreement can be used to protect a spouse who is well off, a prenuptial can also be used to ensure that the partner who is weaker financially is protected.
8. If you plan to quit your job to raise children. Quitting your job will negatively impact your income and your wealth. A prenuptial agreement can ensure that the financial burden of raising the children is shared fairly by both partners.
Pros of Prenuptial Agreements:
Having a prenuptial marriage agreement does not mean that a couple is anticipating divorce.
Financial matters need to be faced.
Prenuptial agreements can preserve family ties and inheritance.
If your future spouse won't sign a prenuptial marriage agreement, it may be best to discover this before the wedding.
The financial well-being of children from a previous marriage can be protected.
Personal and business assets accumulated before your marriage is protected.
A prenuptial puts financial expectations out on the table before your wedding.
A prenuptial marriage agreement spells out which assets a spouse may want to give to children or other family members in the event of death.
In the event of a divorce, a prenuptial agreement eliminates battles over assets and finances.
Cons of Prenuptial Agreements:
Prenuptial marriage agreements can be set aside for failure to disclose all assets, or if there is evidence of fraud, duress, unfairness, or lack of representation at the time of signing the agreement.
They are unromantic.
Prenuptials can give the appearance that there is a lack of trust between the partners.
A prenuptial agreement could create resentment between spouses.
A prenuptial marriage agreement makes it seem like there is a lack of a life-time commitment to one another.
Do I need a Prenuptial Agreement?
If the answer is"Yes" to any of the following scenarios a prenuptial agreement could be right for you.
I am thinking of getting married and want to protect my property in case it doesn't work out.
I am about to marry for the second time and want to limit any potential claims on the settlement I received from my first marriage if things go wrong again.
I am a widower thinking of marrying again. I want to protect my assets in case things go wrong.
I am about to marry but worry that if things go wrong we could end up in a costly and lengthy argument about "who gets what"
I am about to marry for the second time but want to protect my assets to ensure I have something to leave in my will to the children from my first marriage if my new relationship breaks down.
Is Prenuptial Agreement Legal in the UK?
In the United Kingdom, pre-nuptial agreements currently have no legal standing. They are not binding on the courts
Recently, in a case called MacLeod v MacLeod, the most senior judges confirmed that while pre-nuptial agreements may be taken into consideration by the English court, they are not enforceable agreements under English law
However, since MacLeod, in a case called Radmacher (formerly Granatino v Granatino), the Court of Appeal has gone somewhat further, suggesting that judges should treat pre-nuptial settlements as the decisive element in some ancillary relief cases, and even calling for legislation to introduce a formal presumption that both pre-nuptial and post-nuptial settlements be dispositive' of any claim for ancillary relief, that is a presumption that any agreement between the parties should form the basis of any award made by the court.
The Court will carefully consider things like:
Did the party with the most to lose understand the nature of the prenuptial agreement?
Did he/she have independent legal advice?
Was he/she under pressure to sign?
Was there full financial disclosure?
Would an injustice be done if the prenuptial agreement
What Can & Can't Be In A Prenuptial Agreement
The range of what can be in a prenuptial agreement is flexible and can accommodate most of the individual wants and desires that a marrying couple may have. On the other hand, there are some strict rules about what cannot be in a prenuptial agreement.
Generally, a prenuptial agreement can deal with the following:
(a) division of property on divorce;
(b) whether particular items are considered community property or separate property;
(c) ownership of the marital residence;
(d) responsibility for premarital debts;
(e) distribution of property on death;
(f) alimony obligations;
(g) financial responsibilities during the marriage;
(i) how disputes about the prenuptial are to be resolve (for instance through mediation or arbitration); and
(j) sunset clause many couples allow that their prenuptial agreement will not be valid if they are married for a certain number of years.
There are a number of limitations to prenuptial agreements. Prenuptial agreements could not deal with the following:
(a) custody of the children (this includes things such as in what religion to raise the children, their schooling, etc.);
(b) visitation to the children;
(c) child support;
(d) anything "illegal" (as with most contracts); and
(e) anything "unconscionable" (unfair)
(f) anything that is thought to encourage divorce;
Remember, if your Prenuptial Agreement covers anything other than financial matters, you run a very real risk of having the judge not consider it. So the best advice in making a Prenuptial Agreement is to stick to financial matters only
Using Our Prenuptial Agreement Template
Net Lawman's prenuptial agreements template are fully customizable and have been drafted by expert team of Solicitors and Barrister. Our template comes with full guidance notes to assist you in completing the agreement.
Our prenuptial agreement contains clauses that deal with the following key sections:
The 'matrimonial' home
Contents of the 'matrimonial' home
Other property owned separately
Pre marriage and post marriage property
Pre marriage assets and finances
Post marriage assets and finances
Gifts between the parties
Rights and responsibilities
The Court always has discretion to overturn any agreement in family proceedings although if legal advice has been taken and the proposals were considered fair when the agreement was made, the Courts are unlikely to contest the couples express wishes which makes the agreement a valuable addition to your legal protection in the UK.
Therefore, Net Lawman's agreement is the only way for a couple to protect their assets.
