Who Needs a Prenup?
Premarital agreements can be useful for a party who wants to protect separate assets, such as family wealth from disputes on death or divorce, a party who has a professional practice or other service business and wants to avoid or limit a community interest in it, a party who wants to protect children from a previous marriage, or when the other party has substantial debt, or a support obligation from a prior marriage, and even when a party who wants to opt out of the community property or equitable distribution regimes in place in a given State.
Benefits of a Prenup
If you are anticipating marriage, premarital agreements are effective to promote communication about finances and expectations of each party before marriage. It can provide certainty as to rights and obligations on divorce as well as possibly increasing trust about the other’s intentions.
Lastly, it may reduce chance of litigation on divorce.
What a Prenup Can Do
Premarital agreements can keep premarital property off limits, fundamentally change the default rules regarding community property or equitable distribution in a given State, limit or waive spousal support/alimony, and specify rights on death of either party.
Risks of Proposing One
Neither party appreciates an attorney’s intrusion into their idyllic expectations of love and marriage. The subjects of death and divorce are the antithesis of expectations of love and marriage. Further, agreements can demonstrate a lack of trust and agreements can dampen romance.
How to Discuss a Premarital Agreement
Some ways to approach this discussion would be to talk to your fiancé, work with a marital counselor, use a mediator, adopt a collaborative method, or have the lawyers broach the topic for the first time. There are many different examples of premarital agreements. It is important to remember that agreements must be custom‐drafted to meet the needs of the parties. You may want to avoid boiler-plate agreements.
3 Key Elements to a Prenup
You should think about timing, disclosure to each party, and each party having independent counsel when considering a premarital agreement. For timing considerations, you should think about how far in advance a lawyer should be hired, how far in advance the agreement must be presented and whether there is a deadline to sign the agreement. For disclosure considerations, you should think about what types of things must be disclosed, whether the right to disclosure can be waived, and you should attach all disclosures to the agreement so there is no question what was disclosed. The disclosure should give meaningful information about the party’s income, assets, and obligations and should be served while the agreement is being negotiated with sufficient time for review.
Building a Strong Agreement
You should avoid last‐minute agreements so that there is time to allow for changes. Do not include provisions which violate public policy. You will need to follow the law in your state to build a strong agreement.
Death
People often forget that the property provisions don’t just apply on divorce – they also apply equally at death. You should consider whether you really intend to disinherit the other spouse if you die while the marriage is intact. Life insurance can be provided as a means of security.
Retirement Benefits
Federal law controls in this area. A premarital agreement is ineffective to waive a spouse’s survivor benefits under an ERISA plan unless signed by the “spouse” and it designates a beneficiary etc. (29 USC 1055(c); Hurwitz v. Sher (2d Cir. 1992) 982 F.2d 778 (prenup did not comply with ERISA because the parties were not “spouses” when signed). You would need to have waiver of those rights executed after marriage as well.
Tax Considerations
The Internal Revenue Code, Section 1041 addresses transfers of property between spouses or incident to divorce. You should consider tax returns and whether you will file joint returns or married filing separately.
Spousal Support/Alimony Waivers or Limitations
If you are choosing to limit spousal support, are you limiting the amount, the duration, or both? Consider whether there should be starting and termination dates for support and whether the waiver will be tested at time of execution of the agreement or at time of enforcement. There may be a greater protection under the law for spousal support rights than marital property rights.
You should include a severability clause and address tax consequences.
Choice of Law
Be aware of interstate and international law issues when parties are living in separate places or where they contemplate moving. It is a complex area and you should consult with local counsel as to whether the agreement would be enforceable in that jurisdiction.
Enforcement in Other Jurisdictions
Every state and country are different. Some countries do not honor premarital agreements, but most countries have premarital regimes.
Execution of the Document
You should consider the number of originals and copies needed. You should preserve the document by recordation. When executing, you should initial each page and should include notarization.