Sunday, December 17, 2017

Do Prenuptial Agreements Hold Up In Case Of Divorce


July 12, 2010  

Ask a newly engaged young couple about signing a prenuptial agreement and you will most likely be met with a huffy, “We don’t need one. We’re going to be together forever.” Ask them again after the divorce and you’re more apt to get a request for the name of a good divorce attorney.

Prenuptial agreements are not just for the rich and famous anymore. They have become almost de rigeur, particularly in second and subsequent marriages. “Once burnt, twice shy” is the guiding principle when contemplating a second union, since many hard lessons are learned after the dissolution of a marriage that was expected to last till death. Spelling out prospective needs and expectations prior to walking down the aisle forces a couple to communicate openly and honestly, especially in the area of finance. Hammering out an agreement can be a positive, trust-affirming exercise, and should not be viewed as a question of good faith.

Although violating the terms of a pre-marital agreement may cause a divorce, it can’t be used as grounds, since almost all states now have no-fault divorce laws, negating the need for reasons beyond incompatibility. Generally speaking, the court will honor the terms of the agreement and enforce those that pertain to finances and children, but will seldom delve into some of the more frivolous demands that are sometimes included. For example, it is highly unlikely that either spouse can be fined for withholding intimacy, gaining weight or failing to take out the trash – items which have actually been part of some agreements.

In addition to a couple’s financial situation, if children are involved, a prenuptial agreement will usually specify details of their care and welfare, which are almost always affirmed by the divorce judgment. Prenuptial agreements cannot supersede adjudicated financial support orders, but they can deal with such things as college education and similar issues that arise after a child reaches legal age. They can also address matters pertaining to religion, relationships with grandparents and other non-financial areas, relieving the judge of making those difficult, sometimes heartbreaking decisions.

It has been suggested that prenuptial agreements might be a factor in causing the high percentage of second-marriage divorces. The reasoning is that when a couple starts to regret the time wasted in failed marriages and begins to balk against growing old with the wrong partner, having the terms already spelled out greases the skids into easy divorce. Since twice as much baggage is involved in a second divorce, prenuptial agreements may be twice as necessary as they were the first time around and should be drawn up by two separate attorneys.

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