What is a premarital agreement? – I’m skipping ahead a little bit here, but since my family law blogs over the past month and a half or so have focused on marriage and everything that it entails – the various types, who can, who cannot, legal issues, et cetera – I thought this would be a good time to talk about premarital agreements.
Let me start by saying that there are many types of agreements couples can enter into, including premarital, postmarital and cohabitation agreements. Each has its own framework, and can be a lot to learn all at once.
We will get to those in due time, but let’s start with premarital agreements.
The purpose of a premarital agreement is to create clearly-defined rights and obligations – much like a contract – for couples who are about to get married. They are not mandatory, in fact, many couples carry on long and happy marriages without the thought of a premarital agreement ever entering into their minds.
Having one is completely up to the couple getting married, but must be agreed to beforehand. The common belief is if a marriage ends in divorce, disputes can be resolved by referring to the premarital agreement.
Some reasons for a premarital agreement can include:
- To preserve family fortunes for children, perhaps from a prior marriage.
- To eliminate, limit, or set any future alimony obligations.
- Predetermine rights and duties during a marriage, including child care, career sacrifices, et cetera.
- Clearly define which property belongs to each party, how taxes will be filed, or to separate income.
- To ensure a specific religious upbringing for a child.
These are just a few reasons why couples would want one. A premarital agreement can cover any matter as long as that “matter” is not illegal in nature, adversely affects a child’s rights, or defrauds a creditor.
Before you enter into a premarital agreement, here are some initial considerations and basic rules.
For starters, a premarital agreement must be in writing and it does not apply to a couple that is already married. While this type of agreement does not require a specific date for marriage, both parties must sign and have the document sworn and notarized beforehand. Hence, “premarital.” The agreement goes into effect on the date of the marriage.
Before a premarital agreement is signed, each party must list specific matters each party can agree to, and each has the opportunity to receive full disclosure of property and financial obligations. Inadequate disclosure can be a defense to the enforcement of a premarital agreement.
Before marriage, a premarital agreement can be amended or revoked by a written agreement signed by both parties. The same is true after getting married.
Premarital agreements are OK for both ceremonial and informal marriages. If you are living together with no intention of getting married, there are separate agreements for that.
As with any contract, it is wise for both parties to consult with their own attorney to avoid a potential argument that one party had more “pull” or “bargaining power” than the other with only one party represented by an attorney. If you are considering the need for a premarital agreement, please give one of our team members at Nelson Law Group, PC a call.