Frequently Asked Questions about Prenuptial Agreements

If you are considering marriage, you may also be considering whether or not you’d like to have a prenuptial agreement in place.  Read below for some frequently asked questions about prenuptial agreements.

What Are Some Common Features of a Prenup?

There are several common clauses in a prenuptial agreement.  First, there may be property separation and financial separation, to protect individuals’ own separate property and to protect one another from each other’s debts.  There may be a clause on alimony, to determine the level of support owed to a spouse.  There may be information on child inheritance included, which is especially relevant if one of the spouses was in a prior marriage; terms on child inheritance will ensure that the children can keep a portion of the estate rather than go directly to the other spouse.  There may be provisions that express which jurisdiction will host a divorce or separation proceeding and to determine which laws will cover the issue, which is in fact two different issues, a fact that may surprise you.

What Type of Counsel Should I Have?

Prenuptial agreements are most common when one spouse or the other (or both) have substantial assets or debts.  If one spouse is wealthier than the other, the wealthy spouse could disadvantage the other.  To ensure that the terms of such an agreement are fair, each party should have independent legal counsel (and in fact some states require this for the prenup to be enforceable).  The lawyers should not have conflict of interests.

I Thought Prenuptial Agreements Aren’t Enforceable?

This is actually untrue.  A properly drafted prenuptial agreement IS enforceable in court.  There are a couple of caveats to this.  Prenups are only enforceable if it is fair at the time of the enforcement, not just at the time of the marriage.  No agreement can promote divorce.  This can happen when the agreement disproportionally gives one spouse too much property or alimony in the event of a divorce.  Finally, there can be no provisions for child support responsibilities.  These will be determined by the court or by divorce settlement at the time of the divorce.

What Can’t a Prenup Enforce?

Some people want to include information in their prenup about how household responsibilities will be divided during the marriage, how child support and visitation will be dealt with in the event of divorce, or to enforce an agreement that violates public laws, like one that restricts the free exercise of religion of one of the spouses.  These provisions may not be enforceable, and may in fact invalidate the entire prenuptial agreement at the time of the divorce, certainly something you would want to avoid.  State laws vary on what they will and will not permit in a prenuptial agreement.

What Do I Do If I’m Thinking about a Prenup?

The best thing you can do if you’re thinking about getting a prenuptial agreement is to find an experienced family law attorney.  Don’t hesitate to reach out to the Atlanta prenuptial agreement attorneys at the The Solomon Firm today.

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