What Does A Prenup Protect?

Prior to tying the knot, there can be lots of legal documents to prepare and sign, including a prenuptial agreement, if the spouses elect to do so. Let’s look at what these agreements can and cannot protect.

What Is A Prenuptial Agreement?

In the state of Arizona, two people can voluntarily join in a prenuptial agreement prior to getting married. Prenuptial agreements are also commonly referred to as premarital agreements or antenuptial agreements.

These agreements set forth the spouses’ rights and responsibilities within the marriage and if the marriage ultimately ends in a divorce or one spouse’s death. All prenup contracts must be finalized before the couple enters into the marriage. If the wedding happens to be called off, then the contract is invalid and unenforceable.

If the prenuptial agreement is completed correctly, it offers many benefits to the eventual spouses. This proactive plan going into marriage provides a clear course of action on the occurrence of nearly any contingency. Prenuptial agreements are put in place to offer certainty in the event of a divorce, disability, or death.

What Can A Prenup Protect?

When coming up with a thorough prenup agreement, there will undoubtedly be a lot of ground to cover. The following items are protected in a prenup.

Alimony

Alimony, also referred to as spousal support, should be the first thing a woman looks to include in a prenup. This is the financial compensation you’ll receive from your spouse following a divorce. Depending on your situation, you may include a few different spousal maintenance scenarios that benefit you most within the prenup.

For example, you could include stipulations that guarantee you either receive a minimum amount of alimony, a variable amount depending on set conditions, or you can specify that neither spouse owes alimony in the event of a divorce.

Premarital And Marital Property

Make sure to discuss with your spouse which assets will be separate or community property. The courts define assets a spouse acquires prior to marriage as separate or premarital property. Any assets gained after marriage are viewed as community property.

An agreement made by both spouses on which property belongs in each category can help save time and discussion during a divorce process. Unless you specify something like a house as separate property in a prenup, the judge will have to consider it marital property.

Financial Responsibilities

Thinking about financial responsibilities is crucial prior to any prenup agreement. As spouses, you may have differing attitudes toward your finances or responsibilities, overall.

Consider having a conversation regarding finances that involve the following talking points:

• How much will each spouse put away toward savings?
• Will you have separate or joint bank accounts?
• Who will handle the majority of living expenses?
• Who is responsible for making major financial decisions?

Estate Plan Protection

You might want to determine how you’d like to distribute your estate when you either divorce or pass away. Determining a preference is typical for people entering their second marriage or coming into a marriage with significant assets.

For instance, you may wish to ensure that your children from a previous marriage inherit your property rather than your spouse. Without a prenup in place, it will be up to the court to divide your estate according to state laws.

Infidelity Clause

An infidelity clause will detail provisions should one spouse prove to be unfaithful to the other. Infidelity clauses are particularly helpful in states with no-fault divorce. This clause can specify infidelity consequences, including a set amount of money the unfaithful spouse must pay the other.

Dependents’ Interests

Married couples with children or dependents from a previous marriage can protect all parties in the event of a divorce with a prenup. Specifically, prenups can set aside pieces of property or assets that are intended to go to existing dependents. This property or other assets will then not be considered marital property.

Life Insurance

Prenups can contain provisions outlining the handling of life insurance plans. A spouse or someone else can be named the beneficiary in the policies.

Prenups can be used to require that your partner also get a life insurance policy to ensure you are taken care of in the unfortunate event of their death.

Inheritances

A prenup is a great way to protect future assets from becoming shared marital property for individuals expecting to receive an inheritance.

Will And Trust Considerations

The courts typically favor prenups over a will in order to determine how marital properly will be divided post-death.

Specific State

The laws regarding prenups can greatly vary state to state. Due to this, many prenups will specify which state’s laws should be used to govern or arbitrate this agreement.

Everything A Prenup Cannot Protect

While prenups are certainly very powerful documents, they do have several limitations. Couples should know exactly what a prenup does not protect, including the following examples below.

Daily Household Matters

Generally, federal and state law will restrict prenups to marital responsibilities and financial issues. More personal, routine matters, such as beliefs on how to properly raise children or household chores, do not belong in these agreements. This could ultimately make the prenup unenforceable.

The eyes of the law view a prenup as a contract between equals. This means that neither spouse can include provisions about their partner’s hobbies, appearance, or religious beliefs.

Anything Supporting A Divorce

During the process of a divorce, the court will check for any clauses or language that goes against the typical policy of promoting marriage. Any financial incentives for filing for divorce will be a cause for concern, obviously.

Not only are such clauses unenforceable, but they could also invalidate the prenup entirely.

Child Support And Custody

Prenups cannot predetermine child custody, support, or any visitation rights. This is general rule across all 50 states. Instead, the courts will decide what is appropriate in the event of a divorce, always based on the best interest of the child.

Considerations like the exact amount of child support that needs to be paid will also factor in state guidelines and the specific needs of the child.

Anything That Is Unfair Or Unjust

The most essential piece of a prenuptial agreement is fairness. This document needs to be fair for both parties.

A prenup cannot contain any provision that notably favors one spouse over the other. A disproportionate property division would be one example of this.

Illegal Provisions

While this may seem quite obvious, prenups cannot contain any provisions related to illegal activities.

Legality Of The Prenuptial Agreement

There are a few terms that cannot be included in a prenup. Child support is one such issue that can’t be included in the agreement. Child custody is another issue that can’t be tackled in a prenup.

Both sides need legal counsel to help create an enforceable prenuptial agreement. There is truly no such thing as an ironclad prenup. Yet, with fair terms and experienced legal representation, you will be able to create a prenup that’s suitable for both sides.

In the event of a divorce, your legal team will review the prenup’s validity. Contact High Desert Family Law Group today with any questions.

Source: “Prenuptial Agreements: What They Can And Cannot Protect” Legal Zoom https://www.legalzoom.com/articles/prenuptial-agreements-what-they-can-and-cannot-protect