A prenuptial agreement is simply a contract entered into by two parties prior to getting married to each other. It is a convenient vehicle to assist in laying a “road-map” into the future. The prenuptial agreement, also commonly known as a prenup requires some formality to make it enforceable. In many jurisdictions the formality needed is akin to the requirements needed to file a deed within that jurisdiction. In the simplest form, a prenup should be signed by the parties entering into the agreement in the presence of a notary public, who in turn, certifies that the parties entered the agreement in their presence.
There exist many pros and cons that should be considered prior to entering into a prenup. agreement. Here are just a few.
Pros:
1 . Protection of Premarital Assets: a prenup can protect premarital assets, such as property or investments, from being divided pursuant to a divorce. It enables the “owner” of the property or investments to keep their interest in the property, even if there may be unintended consequences from co-mingling the asset with marital funds.
2. Avoiding Disputes: a prenup can prevent lengthy and costly disputes over property division and financial matters in case of divorce.
3. Clarification of Financial Expectations: a prenup can clarify financial expectations, such as how joint accounts will be managed or who will be responsible for paying certain bills or to fund certain savings.
4. Protection from Debts: a prenup can protect each partner from the other’s debts, ensuring that neither spouse is responsible for the other’s premarital obligations.
5. Protection of Family Inheritance: a prenup can protect a family's inheritance so that it is kept within the grantee’s family and will not be shared by the incoming spouse.
6. Protection of Business Interests: if one partner owns a business, a prenup may be utilized as a vehicle to protect that business from being divided in case of divorce.
7. Flexibility: a prenup agreement can be tailored to each couple’s specific needs and financial situation. In other words, anything goes so long as it is legal.
8. Reduced Stress: having a prenup in place can reduce the stress and emotional toll of divorce proceedings by providing clear guidelines for the division of assets.
9. Protection for Children: a prenup can protect the financial interests of children of previous relationships, and those not yet born.
10. Privacy: a prenup agreement can keep details of the divorce and financial matters private and confidential.
Cons:
1. Negative Connotations: some people may see a prenup as a signal of distrust and lack of commitment to the relationship.
2. Power Imbalances: if one partner has significantly more assets than the other, a prenup could ultimately give them more power, creating an unfair advantage throughout the marriage. Ultimately, it may bind the lesser monied spouse from terminating an unhappy marriage due to fear of financial instability.
3. Emotional Stress: discussing terms for a prenup can be the cause of stress and conflict between partners.
4. Complexity: prenups when properly drafted can be expensive, as each party should hire counsel of their own choosing to workout the details.
5. Changes in Financial Situation: a prenup may not account for unpredicted changes in the couple’s financial situation or changing circumstances.
6. Lack of Enforceability: prenups can be challenged in court, especially if they are deemed unfair or entered into by a party who was under duress or ill-informed.
7. Limited Scope: prenups may only address limited financial matters and may not cover all aspects of the parties rights when getting divorced.
8. Relationship Strain: the process of negotiating and creating a prenup often puts a strain on the parties relationship just as they are about to embark into the future.
9. Uncertainty About the Future: couples may be ill equipped to predict how their financial situation or relationship will evolve in the future.
10. Difficulty to Modify: prenups, when entered into with the proper formalities required by a jurisdiction, can be difficult to modify or terminate, even if both parties are in agreement to do so. In other words, any modifications will need to be done with the same formality as the agreement was entered into.
11. Laws Change: while current law permits entering into an enforceable prenup changes to the law are possible and may serve to vitiate any or all terms agreed to by the parties.
If you are considering entering into a prenuptial agreement, and you reside in the states of New York or New Jersey, feel free to contact Mr. Milgraum to draft and/or assist you in negotiations of an agreement. Call: 973-812-8660 or e-mail: Disputelaw@aol.com
* Glenn P. Milgraum, Esq., APM, has over 35 years of experience litigating Family and Civil Matters. Mr. Milgraum is a rostered mediator in New York and New Jersey for Civil, Divorce and Family matters (including those involving “domestic abuse” and “inter-personal violence”). He is an active member of NJAPM (New Jersey Association of Professional Mediators), has earned the designation of an “Accredited Professional Mediator” (APM), and is a Member of NJAPM’s Board of Directors.