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The Pros and Cons of Prenuptial Agreements

By Wanda Marie Thibodeaux

When people walk down the aisle and get married, they hope the union will last a lifetime. The cold reality, however, is that roughly half of all marriages in the United States end in divorce as of 2012, says the Centers for Disease Control and Prevention. With the odds of splitting from a spouse so high, people turn to prenuptial agreements to protect their assets. These agreements are legal contracts that have both advantages and disadvantages.

Advantages of Prenuptial Agreements

· A prenuptial agreement can protect your financial stability. This is the reason the majority of people create and sign a prenuptial agreement. In community property states — Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington or Wisconsin (Alaska is opt-in) – the law says that, without a prenuptial agreement, you and your spouse share assets, property and debts equally regardless of whose name is on titles, registrations or deeds. That can mean big financial loss if your spouse didn’t contribute as much to the marriage monetarily as you did. In separate property states where the law says you own most non-joint assets and debts in your name, a prenuptial agreement can create a more even division of property and assets. Prenuptial agreements also can ensure your spouse doesn’t get family heirlooms, and they define clearly what you and your spouse consider marital and separate property.
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Cohabitation Agreements

Cohabitation is a popular choice as an alternative to marriage for many couples. In some states, it is the only alternative for gay couples. It is quickly becoming an important social trend as more and more people choose to live together intimately without the benefit of marital vows. Since two individuals who cohabit are not given the same rights as married couples, it is important to consider the ramifications of doing so as well as the importance of creating a cohabitation agreement.

What is cohabitation?

Cohabitation, which is a legal term, refers to the living arrangement of two people who are in an intimate or romantic relationship and share the same living space. The individuals in this type of relationship are not married.
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Who Should Get a Prenuptial Agreement?

A prenuptial agreement — sometimes referred to as a “prenup” or a “premarital agreement” — is an agreement signed by a couple prior to marriage. The agreement determines how the couple’s assets will be divided if they divorce and may set the amount of alimony paid by the high-net-worth partner. It may also impact the division of an individual’s property upon death.

Lawyers advise clients to negotiate a prenuptial agreement under a variety of circumstances. As a general rule of thumb, the wealthier you are, the more important it is to have a prenuptial agreement. Upon divorce, many states give the less wealthy spouse ownership and control over half the richer partner’s assets, if those assets were acquired during the marriage. This means that a woman with a successful real estate company would discover upon divorce that her husband had a legal right to half of what she earned during the marriage, even if the husband was an obsessive gambler who contributed nothing. This division of assets can be overridden by a prenuptial agreement, which is why this legal instrument is popular with high-net-worth individuals.
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How to Ask for a Prenuptial Agreement

A prenuptial agreement is a contract signed by a couple before their marriage that specifies how they will divide assets upon divorce or death.  Sometimes a prenuptial contract may also set forth certain terms of the couple’s life together.  A prenuptial agreement, sometimes called a “prenup” or a “pre-marital agreement,” is usually a good idea, especially when one or both partners have children from a prior marriage.

Unfortunately, your fiancé may feel that you want a prenuptial agreement because you do not really trust her, or because you expect your marriage to end in divorce.  If handled improperly, prenuptial negotiations can drain the romance from a courtship, leaving suspicion and hurt feelings.  Follow a reasoned strategy as you explain why, exactly, you want to negotiate a prenuptial agreement.
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Prenuptial Agreement Sample

This is a prenuptial agreement sample. Its purpose is to give you a sample of what a prenuptial agreement looks like and what sort of terms are contained in a prenuptial agreement – to give something concrete to all the theory on this website. You would be very foolish simply to copy this agreement and use it for your own, as everyone’s circumstances differ, and the law differs in every state. Instead I recommend that you study this sample and use it as a basis for getting a Do-it-yourself Prenuptial Agreement.

 

THIS AGREEMENT MADE IN TRIPLICATE THIS 28th day of July, 2011

BETWEEN:

 

JOHN SMITH
of the City of Los Angeles
in the State of California

– AND -
SALLY JONES
of the City of San Diego
in the State of California

PRENUPTIAL AGREEMENT

BACKGROUND

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Before the Wedding – Financial Plans for the Bride and Groom

Since financial problems are one of the leading contributors toward divorce, an engaged couple would be wise to take preemptive action. The bride and groom can do so by establishing financial policies and practices that will be observed within their future marriage. There are three primary areas of discussion regarding finances within marriage:

1. Money Management

Couples should work together to develop a workable budget that they will follow. Even couples with minimal income can and should have a budget. This budget ought to reflect all expected income and expenses while being careful not to overlook savings, charitable giving, and an emergency fund.
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Premarital Counseling

Marriage is an exciting prospect. It is natural for an engaged couple to become wrapped up in the excitement and to immerse themselves in planning the big day. However, as they revel in their love for each other, a couple may neglect to adequately prepare themselves for the responsibilities that come with marriage and for the expectations of their future spouse.

That’s where premarital counseling comes in. It is common for engaged couples to seek premarital counseling leading up to the day of the wedding. In many cases, this counseling takes place with the minister who will be performing the wedding ceremony. In other cases, especially if the ceremony is not going to be performed by a member of the clergy, a professional counselor may be consulted.
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Prenuptial Agreement Form

A prenuptial agreement form is a form that you complete from which a prenuptial agreement is generated. The advantage of these are that they are significantly cheaper than going to an attorney, despite the fact that the agreements are drafted by attorneys. As well, you can do it yourself and this makes the process much quicker and simpler as well.

We offer a prenuptial agreement form for all states, as follows: Read the rest of this entry »

Enforceability of Prenuptial Agreements

There was a time when prenuptial agreements were treated very cautiously by the courts and it was difficult to enforce them.  The courts took the attitude that prenuptial agreements encouraged divorce, and that this was against the public policy of encouraging marriage.  Times have changed, and now prenuptial agreements are more common and are normally enforced by courts.  However, there are many circumstances when a prenuptial agreement may not be enforced.  These circumstances are as follows:
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Prenuptial Agreement California

Prenuptial agreements in California are governed by California’s Uniform Premarital Agreement Act.  You can find the official version here.

Under this act, a prenuptial agreeement California is known as a premarital agreement.  Section 1610 of the California Family Law Code defines what a premarital agreement is – basically it is an agreement made by an engaged couple that will take effect when they get married.  Section 1610 also defines what property is, and the definition is very broad, encompassing pretty much anything of value.
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Postnuptial Agreements

A question that I’m sometimes asked is: Can I enter into a prenuptial agreement after I get married? The answer is: yes, you can. These agreements are known as postnuptial agreements or postmarital agreements.

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Death by Prenuptial Agreements

I am horrified to see this tragedy. In Australia, Terrance John Jackson has just been convicted of murdering his partner, Marita Ameli Brown, because she sought legal advice about getting a prenuptial agreement.

Divorce can be a really ugly event. Unfortunately, this sort of thing does happen during a bitter divorce. However, I have never heard of such a case involving a prenup before. I can’t even begin to imagine what must have gone through Jackson’s mind.

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Privatize Marriage?

There was an interesting op-ed in the New York Times recently arguing for privatizing marriage. According to the article, throughout most of history the government was not involved in marriages at all. While religious institutions did get involved, people could still get married without the approval of a religious institution and had the same rights as people married through a religious institution. All a couple had to do was agree with each other that they were married and they were.

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Does Family Law Uphold “Maher”?


Maher (also spelt Mahr and Mehr) is a sum of money that the man agrees to pay the woman in a Muslim marriage contract. The idea is to provide some financial security for the wife. Often, this amount is not paid right away or is payable upon divorce. The question is: does secular American family law uphold this obligation to pay in a religious prenuptial agreement?

The answer is both yes and no. There is not much judicial authority on this issue. A recent Ohio case found that payment of Maher should not be upheld in part because the payment was a religious act. On the other hand, there has been a New Jersey case that upheld payment of Maher as constituting part of a valid contract, rather than a prenuptial agreement.

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Prenuptial Agreements Roundup – November 7, 2007

There have been a lot of good posts in the blogosphere lately about prenuptial agreements. Here’s a roundup of some of the best ones:

1. I Will Only Marry You If We Get a Prenup – Wise is the person who says this. This article emphasizes the importance of getting a prenup.

2. Basics of Prenuptial Agreements. This article is written on a blog about financial prosperity by someone who is about to get married.

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The Best Answers to Frequently Raised Objections About Prenups

Prenuptial agreements have often been represented as “weapons” that spouses use in a bitter divorce, pessimistic, “worst-case-scenarios” that seem to say that a marriage is doomed from the start.

As a result, many people voice strong objections when their spouse-to-be suggests that they create a prenup. Most of these objections come from the heart not the head because prenuptial agreements are, in fact, a wise “insurance policy” for any marriage.

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Reasons For Your Future Mate To Say “I Do” To A Prenup

To the bride and groom, marriage is a loving contract between two people who want to spend the rest of their lives together. In the eyes of the law, marriage is also a contract between two people … not about love, but about a variety of financial rights and obligations.

It’s hard to talk about marriage as if it were “business,” but when it comes to creating a prenuptial agreement, that’s exactly the approach you should take. A prenuptial agreement isn’t a well-planned “exit strategy” or evidence of a lack of faith in the relationship. It is simply protection against an unlikely and unforeseen “what if” circumstance … an important “insurance policy” on the legal issues of the marriage contract.

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What Can & Can’t Be In A Prenuptial Agreement

The range of what can be in a prenuptial agreement is flexible and can accommodate most of the individual wants and desires that a marrying couple may have. On the other hand, there are some strict rules about what cannot be in a prenuptial agreement.

Generally, a prenuptial agreement can deal with the following:

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6 Costly Myths About Prenuptial Agreements

Myth #1 – Prenuptial agreements are only for the wealthy. No. Prenuptial agreements are for ordinary people. Given the high legal fees and stress involved in a divorce, the frequency with which relationships end nowadays, as well as peoples’ increasing financial sophistication and independence, a prenuptial agreement can benefit just about everyone.

Myth #2 – Prenuptial agreements are only useful if your relationship breaks down. No. Prenuptial agreements can be useful estate planning tools. Without a prenup, your spouse may be able to invalidate your carefully thought out estate plan. A prenup can be especially helpful if you have children from a previous marriage or have family heirlooms that you want to keep in the family.

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8 Reasons Why You Should Get A Prenuptial Agreement


A prenuptial agreement is an agreement between two people that deals with the financial consequences of their marriage ending.

All marrying couples have a “prenuptial agreement” – it is known as “divorce law.” However, a lot of people are unhappy with the way divorce law works, and prefer to take control of their lives, rather than leave it in the hands of the government. In these cases, it makes a lot of sense to get a customized prenup.

Getting a prenuptial agreement is particularly important in these 8 cases:

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