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Pre-Nuptial Agreements: The Path to Clear-Eyed Wedded Bliss

by Anika Logan

So, you're having a romantic dinner, just the two of you, and the love of your life pops the question. It's the moment you've been waiting for. You breathlessly blurt out, "Yes, of course!" But it's not all hearts and roses - after slipping a beautiful ring on your finger, he asks another question, a question you weren't expecting at a happy, life changing moment like this:

What do you do next?

1. Throw the ring back his face and tell him you wouldn't marry him if he were the last man on earth?
2. Burst into tears, demand to know why he doesn't trust you?

Or:

3. Discuss his reasons behind a prenuptial agreement and consider the possibility that it could be beneficial to both of you in the long run?

Just a hint: Go with C.

Harmony aside, let's consider the benefits of a pre-nup:

Yes, yes… the thought of a pre-nup twists your stomach. But, remember: a prenup is only a contract. The pre- in prenup means it's an agreement that takes place between prospective spouses before the marriage or "nuptial."

A prenuptial agreement allows both parties the chance to set forth plans for income and assets if the marriage ends in separation, divorce or death. While discussing financial issues is never easy, talking about money before entering a marriage can save heartache and tensions in the long term. Without a prenup, assets could end up in the hands of your spouse's children from a previous marriage instead of your own kids. They could also go to a mate who contributed very little while you built a business from the ground up or wrote a book that became a smashing success.

A marriage's financial well being can be ensured ahead of time with a pre-nup approved by both partners. After all, marriage is as much a financial union as it is a physical and emotional union.

Is a prenup is right for you?

If you fall into any of the following categories, you should at least consider a prenup:

• You have assets such as a home, stock or retirement funds
• You own all or part of a business
• You may receive money from an inheritance
• You have children and/or grandchildren from a previous marriage
• One of you is more financially stable or wealthier
• One of you will finance the other's education
• You have loved ones who need care (i.e., elderly parents or a mentally or physically challenged sibling)
• You have or are pursuing a degree in a potentially profitable profession, like law or medicine
• You forsee large income potential due to your business taking off, your book making it to the bestseller list, your band recording their first hit, and so on

While enforcement of prenuptial agreements varies from state to state, five conditions are generally imposed. First, all assets, accounts, liabilities, sources of income and any other factors likely to create a shift in financial position must or should be revealed. Second, each party must retain independent legal counsel. Third, generally, the agreement must be fair at the time it is entered into. What this means is that your prospective spouse must have a certain period of time between when he or she is presented with the agreement and when your marriage will take place. It could also mean, if your spouse is from a foreign country, that the document must be translated into their native language. In some states, the prenup must also be fair at the time of enforcement. Unfortunately, the courts and a jury often decide what a reasonable person would consider fair. Fourth, the courts may cancel the prenup if enforcing it would impoverish either party and cause one party to seek public assistance. Finally, no prenup can ever disclaim child support.

A few more things to keep in mind on the subject of prenuptial agreements:

• Your spouse's will can never be less generous than the conditions of the prenuptial agreement. A will, on the other hand, can always leave more than the amount agreed upon in the prenup.
• You can include a sunset clause in your prenuptial agreement, which means the agreement will only be valid for a predetermined amount of time. You can arrange for the prenup to expire in ten years, twenty, or any length of time you select. This option allows people the comfort of a prenuptial while not feeling bound by it after the marriage has proved to last.
• While it may seem obvious to most people, make sure the agreement is in writing. Also, have witnesses present when the agreement is signed and sign the contract in triplicate. The bride and groom receive one copy respectively, while a third party or bank's safety deposit box contains the third.

So, now that you're armed with a little more information on prenuptials, how will you answer your beloved's second question?

LegalZoom is not a lawfirm and can only provide self-help services at your specific direction. Information contained above is subject to change and is not applicable to every state. Visit LegalZoom.com for specific state-by state-documents.

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