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PRENUPTIAL AGREEMENT

A prenuptial agreement is a legal contract between two people who plan to get married. Also called a premarital agreement, a prenuptial agreement spells out how the couple's assets will be divided upon death or divorce. While breeching the subject of a prenuptial agreement before the big day can be an awkward and romance killing endeavor, there are several benefits to having a prenuptial agreement.

When a couple has a valid prenuptial agreement, the division of their assets and debts upon divorce or death is left to their discretion. If there is disagreement about the division of assets and a couple does not have a prenuptial agreement, the state may determine how assets are divided and this may compromise your legal interests. A prenuptial agreement typically spells out how money, property, and other financial matters will be settled, though it can also include non-financial agreements.

There are several people for whom a prenuptial agreement may be in their best legal interest. Prenuptial agreements are popular (and valuable) for people who: are marrying later in life, have significant assets, own businesses, have children from a previous relationship, are expecting an inheritance, wish to protect themselves from loss in divorce, and the like. Couples with a huge discrepancy in assets or those who wish to protect certain assets (like a family home or valuable) may also find a prenuptial agreement an attractive option.

All fifty states have adopted a law called Uniform Premarital Agreement Laws, which explain when and how a prenuptial agreement will be upheld. It is important to remember that a prenuptial agreement is worthless if a judge determines that it is not valid. For this reason, it is crucial for each partner to have independent legal representation when writing up a prenuptial agreement.

For a prenuptial agreement to be upheld, the contract must be completed prior to the marriage and signed in the presence of a legal professional. Both parties must fully and accurately disclose all information about their income, assets, and debts at the time the prenuptial agreement is written and signed. If a judge later finds that one party withheld any of this information, they will find the prenuptial agreement null and void. The courts will not honor any prenuptial agreement if they feel that it is unconscionable (unreasonable) or that it was signed under duress, threat, or force by either party.

A judge will also not uphold any prenuptial agreement provision that has to do with child custody or child support. Spouses have the right to waive their own rights (i.e. rights to property or alimony) in a prenuptial agreement but not the rights of their children. A judge always has the final word on issues involving children after death or divorce. A child's best interests will always have priority over the will of either parent in a divorce.

If you would like to learn more about your legal rights and options regarding a prenuptial agreement, please contact us to speak with a qualified and experienced family law attorney who can protect and maximize your legal interests.

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