The early romantic days of a relationship are filled with a level of giddiness and optimism that is almost impossible to sustain as each person becomes more comfortable with the other. When the “Honeymoon Phase” is over, however, many people worry what will happen if their partnership does not last forever. The practical realities of the life dictate that some marriages will end in divorce, and this possibility of divorce should compel most couples to discuss and agree on how to split assets and the payment of spousal support in a prenuptial agreement.
Divorce can easily become complicated and expensive, especially if one spouse has children from an earlier relationship or brought substantial amounts of property into the marriage. Taking these issues into account in light of a possible divorce will save the couple time, money, and uncertainty in the long run. There are, however, important aspects that spouses with fewer resources should keep in mind when signing these agreements, and a discussion of these potential concerns, as well as the rules that govern the execution and enforcement of prenuptial agreements, will follow below.
Overview Prenuptial Agreements
To create a valid and enforceable prenuptial agreement, it must be:
- In writing;
- Signed by both parties; and
- Entered into in contemplation of marriage;
- Plus, its effectiveness hinges on the couple going through with the marriage.
The primary purpose of these agreements is to lay out how property will be managed, controlled, and disposed of in the event of legal separation, divorce, death, or other specified occurrence. Additionally, the following issues may be addressed in these contracts:
- The modification or elimination of spousal maintenance;
- The making of a will, trust, or other instrument of carry out the agreement;
- The right to death benefits in a life insurance policy;
- The law that will apply to the interpretation of the agreement; and
- Anything else that does not violate public policy.
Note that child support obligations can not be reduced or eliminated through a prenuptial agreement, and any provision that attempts to do will be held invalid. Any proposed agreement should be reviewed by an experienced family law attorney to ensure the terms would be enforced and to remove any vague provisions that could cause problems in the future.
Considerations for Spouses with Less Financial Support
The top reason prenuptial agreements are executed is to protect the assets of a wealthy spouse who does not want to lose a good portion of his/her property in divorce. Thus, the terms will favor this person and can disadvantage the spouse with fewer funds if it is challenged in court. Specifically, clauses related to an elimination of attorney’s fees awards, spousal maintenance, and the right to take anything under a spouse’s estate in the event of death, can all work against the spouse with fewer resources, and make it almost impossible to mount an adequate challenge if the spouse wants to seek legal recourse. Consequently, working with a family law attorney before signing anything is key to preventing the execution of an agreement that is completely disadvantageous to one party.
Speak to an Indiana Family Law Attorney
Both marriage and divorce require compromise, but if you want to take some of the stress and expense away from negotiating the terms of a divorce, consider a prenuptial agreement to settle things in advance. The structure and enforcement of these contracts can be quite complicated, which means working with a family law attorney to handle these matters is the best way to ensure your wishes are actually followed. Christopher L. Arrington, P.C. knows the potential complications that can arise, and will work to create a prenuptial agreement that meets your needs. Contact the Plainfield family law firm to schedule an appointment.