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The Prenuptial Agreement

A Prenuptial Agreement is essentially an agreement between two people who are planning to marry. The agreement typically has to do with how their assets will be distributed in the event of a divorce or death. The motivations behind such an agreement have to do with the wealth and property of either or both parties. Since wealth and property are acquired usually over a long period of time the parties to a prenuptial agreement are usually older people one or both of whom own property with significant value. Oftentimes one or both of the parties have been married before and have children from a former marriage in which case considerations of inheritance come into play. In this regard a prenuptial agreement can prevent Dad’s new wife-turned-widow from getting all his estate and leaving his kids out in the cold. Or, conversely it can prevent Mom’s sizeable portfolio of stocks and bonds from being shared with her recently acquired husband in the event their late-in-life marital bliss comes to a sudden and unfortunate end in divorce court.

That’s not to say that a prenuptial agreement isn’t appropriate for a young couple getting married for the first time. In that case if one or the other has significant wealth in his or her own right that party may choose to keep that wealth separate from the "marital pot" so to speak so that it remains free of any claim by his or her spouse.

Of course, none of this sounds very romantic to be sure; however, when issues such as separateness of wealth and property; and, inheritance rights are important to the parties for their own personal reasons then it is much better to deal with these issues at the beginning of a marriage so there won’t be unrealized expectations at the end of the marriage whether that be by divorce or the death of one of the parties. Planning for a possible eventuality like divorce does not have to mean one is planning for it to happen. Rather, it can mean the planner is smart by recognizing the wisdom of always being prepared - as much as reasonably possible - for the things that happen to us in life that are beyond our control.

Prenuptial agreements are not always enforced by the courts. The main consideration when it comes to the enforceability of a prenuptial agreement is disclosure. For the prenuptial agreement to be valid and binding there must have been full and complete disclosure by the parties of their respective assets when the agreement was entered into. This is so naturally because, to be fair, each party must know what he or she is "giving up" when they sign the agreement. This factor is so important that the astute drafting attorney will tell his or her client to provide a detailed listing of all property and assets owned. This list should be attached to the prenuptial agreement and the language in the agreement will refer to it as incorporated into and made part of the agreement.

The conscientious attorney will advise the non-client spouse to seek his or her own counsel and will follow through on that recommendation by obtaining a letter from the other counsel confirming that he or she met with the non-client spouse and fully advised him or her of all the ramifications of entering into the prenuptial agreement.

It is important that the drafter carefully word the document to properly address the likelihood that indeed circumstances will change over the duration of the marriage. That is, for example, each party’s separate property under the agreement may very well go up or down in value. The agreement should be worded so that it is clear that changes in circumstances are anticipated and therefore cannot be used as a reason, later on, to argue that the agreement should not be enforced.

The drafting attorney should consider using the services of a court reporter or even a videographer to memorialize and preserve the informed consent of both parties. As should be clear by now if you are contemplating a prenuptial agreement you should have an attorney who is aware of what the requirements for enforceability are and has specific ideas about what actions he or she intends to take to ensure compliance with the requirements for enforceability. How will you know if the attorney you are considering has specific ideas about how to ensure compliance? You will ask the attorney; and, the conscientious attorney will share with you specifically what actions he or she intends to undertake to ensure the prenuptial agreement will remain enforceable. If he or she doesn’t do that, look for another attorney who will. I know that advice is easy to dispense but not so comfortable to follow. Most people wouldn’t feel comfortable questioning an attorney or similarly a doctor about how they intend to go about dispensing their professional services. They feel the professional who’s made a career out of studying his or her subject knows what’s best and that they, the client, are in no position to question the professional whom they’ve come to for help. That is the wrong attitude.

The idea of "one size fits all" is a notion that has been the source of professional mishaps and legal malpractice for probably as long as attorneys have been availing themselves of the ease of using the "standard legal form." There are standard legal forms for practically everything. Don’t let yourself wind up paying a substantial fee for a document that does not address all the issues and concerns you have in your particular case. What you want is a custom document. You must first write down what you want your prenuptial agreement to accomplish. You should then educate yourself as to the workings of a typical prenuptial agreement. In this age of the internet and easy accessibility of information you can arm yourself with knowledge of the basics of a prenuptial agreement.

The following is a listing of most of the considerations that should be addressed in a typical prenuptial agreement:

  • The agreement should specify the ages of the parties and the names and ages of any children of either party.
  • If there are former spouses who are entitled to any property or interests of any kind pursuant to a former divorce decree then these provisions should be included in the prenuptial agreement.
  • The matter of alimony also known as spousal support in the event of a divorce is a proper subject for a prenuptial agreement.
  • There should be provisions in the agreement describing how any appreciation in either party’s separate property should be treated. Should such appreciation be considered marital property or should it remain separate property? If the latter, then the appreciation will have to be kept separate from any marital property later acquired during the marriage.
  • What of property acquired after the marriage? Its division in the event of a divorce can also be directed pursuant to the terms of a carefully drafted prenuptial agreement.
  • What about jointly owned property in the event of death? Normally, where two parties own real property jointly when one of them dies the other becomes the owner of the entire property. Will that outcome be consistent with what you want the prenuptial agreement to accomplish?
  • What about gifts and inheritances? Are they to be kept separate?
  • Most importantly does the document make it clear what either spouse is going to give up or waive in the event of divorce? Is it spousal support? Property rights? What about death? Will the wife give up dower and other specific rights provided by law when her husband dies? If she does renounce such rights in a prenuptial agreement her renunciation under Michigan law is irrevocable.
  • What about income tax returns? Should the parties file joint or separate income tax returns? How is the responsibility for payment of income taxes divided if at all?
  • Should a "sunset provision" be included whereby the agreement becomes void after a number or years?

Once you’ve identified what you feel are your goals and you’ve armed yourself with knowledge about the basics of what goes into a typical prenuptial agreement then you should make an appointment with an attorney to discuss what you want done. Tell the attorney you want to see the finished document well before you and your spouse-to-be plan on signing it. This way you will have time to examine it carefully to make sure it addresses all your concerns; and, your spouse will have ample time to go over the document with his or her separate counsel. You can also formulate questions that you still want answered by your attorney. Remember. You are expecting to rely on the enforceability of your prenuptial agreement years in the future when possibly the drafting lawyer will be long gone. It’s your document. You paid for it. Make sure it’s done right.


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