The spouses will obtain automatic property rights under state law unless a legally binding agreement specifies otherwise. State law governs the division of property in the event of a spouse’s death or divorce. If the parties wish to distribute the property differently, a prenuptial agreement is required.
Here are some typical motives for drafting a prenuptial agreement:
- Providing for children from prior partnerships
- Maintaining financial independence. Certain forms of property acquired during a marriage automatically become part of the community or marital estate.
- Interpreting financial obligations throughout a marriage.
- Determining property rights in the event of divorce.
- Why You Need a Lawyer When Drafting a Prenup
One of the most important reasons for engaging a prenup attorney is to avoid a court ruling that the prenup is unenforceable. Courts are more hesitant to enforce a prenuptial agreement executed by a party that was not independently represented by legal counsel. Under these conditions, particularly if the prenup appears unjust to the party without legal representation or if there are concerns about coercion or pressure, the court may properly reject the prenup.
In addition, each state often has tight implementation deadlines that must be met for a prenup to be considered valid. For instance, you may be obliged to implement it a particular number of days prior to the wedding, or you may be required to give each party a given amount of time to evaluate it prior to signing.
Preparing a Prenuptial Agreement
Before consulting with a prenup attorney, a couple must have a thorough understanding of what should be included in their agreement. Creating a summary of the terms is a useful method for drafting an impartial contract. A skilled attorney is familiar with the kind of terms that cannot be incorporated in a prenuptial agreement.
The courts will not enforce arrangements that waive future child support, limit future custody or visitation rights, or utilize financial incentives to encourage divorce. Moreover, situations including non-monetary factors: A court will not enforce a non-monetary condition and can even retain the entire prenuptial agreement if it stipulates the allocation of housework or the number of children. A court will not enforce a non-monetary condition and can even retain the entire prenuptial agreement if it stipulates the allocation of housework or the number of children.
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