To ensure that your prenuptial agreement meets your requirements and is legally valid, you will require an attorney. In fact both spouses must have their own attorneys.
Legally speaking, a marriage is a contract between two individuals. The state law will determine the property rights of the spouses in the absence of a valid agreement that states otherwise. A prenuptial agreement also referred to as a prenup or a premarital agreement allows the spouses to determine their property rights.
Why You Should Have a Attorney Prepare the Prenuptial Agreement?
In the absence of a prenuptial agreement, your property rights will be determined by your state law. Generally the spouses share ownership of marital property – property acquired during the course of the marriage. So both have the right to manage the property. In case of death on one spouse or divorce, state law will determine who gets what. If you want to divide your property differently, then you will need a prenuptial agreement. The following are some of the reasons for having a prenuptial agreement in place:
• Assets – Certain assets acquired during the marriage will automatically become part of the marital estate. A prenuptial agreement can specify which asset is a marital asset and which is separate.
• Children from earlier marriages – By having a prenuptial agreement, you can ensure that your children from a previous marriage get to enjoy your assets after your death.
• Property Rights – In the absence of a prenuptial agreement, your property will be distributed according to the state law in the event of a divorce.
• Financial Obligations – The prenuptial agreement can clearly identify the financial obligations of the spouses including whether to open joint accounts.
Why Hire an Attorney?
It is advisable for both spouses to have their own attorneys advise them when preparing the prenuptial agreement. The agreement should be reviewed by both attorney and explained to their respective clients. If either party did not have legal representation, then courts will be cautious about enforcing such an agreement. If the courts feel that the agreement is unfair to one spouse, especially when there was no legal representation at the time of preparing the agreement, the court can invalidate the agreement.
Preparing a Prenuptial Agreement
You must clearly understand what you want to include in your prenuptial agreement. Ideally make a list of the things you want to include in the agreement and inform your attorney. Both spouses must make a complete disclosure of their assets, income and debts. The law prohibits certain terms from being included in a prenuptial agreement. Speak to your attorney to know more. Generally the following terms are prohibited:
• Illegal or Violation of Public Policy – Any term that is illegal or otherwise a violation of public policy such as waiver of child custody or visitation rights or terms that encourage divorce cannot be included in a prenuptial agreement.
• Non-monetary terms – Any term that is non-monetary in nature such as the number of children or who does what on a holiday will not be enforced. Having such terms can result in the entire agreement being invalidated.