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5 Factors to Avoid During Prenuptial Agreements

A prenuptial agreement—often called a “prenup”—is a legal contract that deals with a married couple’s financial-related assets and liabilities and how they are handled in the event of a divorce.

prenuptial agreementsSuch financial issues can include, but aren’t limited to:
Identifying the difference between separate and marital property (or common property), and how such property will be divided upon divorce.

For general reference, separate property is property that belonged to a spouse before entering marriage; marital or common property is property acquired during the marriage.

Making sure family property stays in the family. Such family property might include a family business, heirloom, or even home. Generally, this type of property interests children; however, it might affect other family members, as well.

Supplementing wills and living trusts in ensuring estate plans are carried out. Again, note that pre-nups do not work as sole legal documents to carry out estate plans.

Protecting children from previous marriages or relationships, e.g. making sure the children receive financially related inheritances you have planned for them and preventing the other spouse or even other children from inheriting these assets.

Keeping one spouse protected from the others’ debts. Establishing debt liability can prevent creditors from going after marital (common) property.

Prenuptial agreements also help define financially related responsibilities during a marriage such as separate businesses, retirement plans and benefits, and even how household expenses are managed.

Unlike postnuptial agreements, which take place after a marriage, prenuptial agreements are signed before the couple is married. This gives the not-yet-wedded couple the chance to sit down and figure out how they’d prefer to handle all financial matters before they enter matrimony.

They can then write and sign the legally binding document—the prenuptial agreement—with the assistance of a skilled family law attorney.

However, before you sit down with a prenuptial agreement attorney, here is what you can and can’t include in a pre-nup. Six of the most common factors include:

  1. Illegal Provisions

Obviously prenuptial agreements can’t include anything illegal. Besides the traditional definition of “illegal,” the court system might find your prenuptial agreement unjust in such situations as:

It is designed—on purpose or otherwise—to help one party prosper and leave the other in complete financial ruin. Understand that this issue doesn’t have to be intentionally written to cause financial ruin; it only has to outline that as the outcome.

There was no independent counsel. Some couples choose to use the same family law attorney for prenuptial agreements; others opt to use their own individual lawyers.

Each situation varies, but your judge might not honor certain or all parts of your pre-nup if you didn’t have independent counsel. Speak with your prenuptial agreement attorney about how laws and even judges in your state interpret this situation.

Either or both parties provided false information. Prenuptial agreements require full disclosure from both parties, including information about all financially related issues such as income, liabilities, and assets.

Keep in mind, these are just a few of the “illegal” issues a family law court judge could find with your pre-nup. A skilled family law attorney with experience in writing prenuptial agreements can help you avoid these issues.

  1. Alimony Rights Waivers

Alimony is a spouse’s legal right to support and maintenance payments from the other spouse after a divorce. For how long alimony payments are made varies depending on state laws and other legal agreements.

Like most prenuptial agreement factors, whether or not a spouse can waive his or her rights to alimony depends on the state; however, many states do not allow or seriously consider throwing out issues related to one spouse waiving his or her rights to alimony.

If alimony is a factor in the event of a divorce, be sure to discuss it with your attorney. Learn about your state’s alimony laws and how they affect what you or your spouse is entitled to in the event of a divorce.

  1. Child Support or Child Custody Issues

While pre-nups deal with financially related issues, generally they cannot play a role in how child support is handled. Most often, child support and child custody situations are dealt with in a different area of family law, which is designed to put the child’s interest first rather than the parents’ interest.

Typically, family law courts take into consideration financially related matters that regard the child’s best interest including, but not limited to:

  • Each parent’s income and earning potential.
  • Childcare and health-related costs.
  • Each child’s needs (often based on the child’s age).

Likewise, child custody issues aren’t determined by prenuptial agreements, either. If you expect child support and child custody issues to arise in the event of a divorce, consider choosing a pre-nup attorney who also specializes in that area of family law.

This ensures you walk away feeling confident about both your prenuptial agreement and the future of your children.

  1. Divorce Encouragement

Generally, anything that counts as divorce encouragement is anything that offers a financially related incentive for divorce. Although financial issues play a major role in pre-nups, anything that a judge can interpret as offering financial motive for initiating a divorce can be set aside.

While prenuptial agreements largely deal with the division of separate and marital financially related property, nothing should insinuate that this division would encourage a divorce.

Remember, a good family law attorney who specializes in writing prenuptial agreements can help you avoid these situations.

  1. Factors Considered “Personal” and not “Financial”

Once again, prenuptial agreements deal with financial matters related to marriage and divorce; they do not deal with any personal, nonfinancial issues.

Such personal issues might include:

  • Which last name to use after marriage.
  • Which spouse handles specific responsibilities.
  • Where the spouses or family spend their holidays and vacations.
  • How each or both spouses handle raising children.

These and other non-financial issues are considered private, domestic-related issues and, most often, family law court judges will not intervene or uphold these types of prenuptial clauses; however, an experienced pre-nup lawyer will advise you on not including them in your prenuptial agreement, anyway.

Note that sometimes, such personal issues can be included in a separate legal document unrelated to your pre-nup. Consult your attorney about such a document.

Get Legal Help with Your Prenuptial Agreement

Need help setting up a prenuptial agreement, or just want some advice on whether or not one is right for you and your partner? Just call (305) 717-7130 to schedule a no-obligations consultation with the family law experts at Estevez-Pazos Law Firm.

We can help you discus your options and determine whether a prenuptial agreement makes sense for your marriage

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