How does a prenuptial agreement work?

Preparing for the worst and unwanted contingencies may prevent additional stress and acrimony at the end of a marriage. A prenuptial agreement can help prevent some of these problems, and can greatly ease in the property division process, should the marriage later end in divorce. A prenuptial agreement is a contract entered between the engaged couple before they marry. Typically, these agreements set forth terms for property division if the couple ever divorces. The prenup may also contain each spouse’s duties and property rights while they are married.

For enforceability, a prenuptial agreement, or prenup, must be reasonable and fair. Duress, fraud and undue influence cannot play a role in its negotiation or execution. These documents should not be entered into near the couple’s wedding day because of the appearance of duress.

In addition to protecting property, there are other reasons for entering these agreements. Older couples may want to protect assets or retirement income or assure that their children from earlier marriages receive part of their estate.

A prenuptial agreement generally contains a list of each partner’s individual property and whether these assets will remain the property of each spouse if they ever divorce. It may also address dividing property that was acquired during marriage and responsibility for debts acquired before and after the marriage. Spousal support is also an issue that can be resolved in these agreements.

Both parties must be transparent with disclosing assets and debts while negotiating these agreements. One of the most positive aspects of a prenup is that it lists property so that there is less likelihood that spouses will have to take part in more costly and timely discovery in a divorce. Failure to disclose information may also invalidate these agreements.

A prenup can not compel illegal or unreasonable acts. Matters such as child custody are also determined by courts based on the best interest of the child and fall outside a prenuptial agreement. Each spouse should have their own attorney assist and advise them. A lawyer can help prepare an agreement that is fair, reasonable and enforceable.