Prenuptial agreements, marital agreements, and separation agreements
Whether you’re single, engaged, married, separated or divorced, it’s smart to take steps to protect yourself.
Depending on your unique situation and specific goals, one of the best ways to protect yourself can be by negotiating an agreement designed to make sure that both you and your partner know what to expect in the event that things don’t go the way you planned.
There are a lot of different options available out there, and most people aren’t aware of them, or even of the particular set of options that might be available to them in their particular situation. They think that, if they didn’t get a prenuptial agreement in place before they tied the knot, they just have to take whatever the court or their husband will give to them–and that’s just not true! There are lots of different points–before, during, and after–your marriage that you can take charge of and get things set forth in writing.
In fact, you don’t even necessarily have to get married to have an agreement in place!
Important Warning: It is very difficult, if not impossible, to have a judge overturn a signed agreement. When you’re negotiating any kind of agreement with your partner, you should seek legal counsel BEFORE signing. Not understanding what you’ve signed, not having read the document, or even feeling pressured to sign it will not be enough to have the agreement set aside.
You get one shot at a well-drafted agreement! Do NOT sign an agreement that you haven’t read, don’t fully understand, and haven’t reviewed with someone who can answer your questions (specifically, NOT your partner’s lawyer!). Yes, ALL of your questions should be answered before you sign!
Nonmarital Agreements can help if you don’t plan to get married. They help set forth just about everything, from expectations for what will happen during the relationship, to how your shared property will be divided in the event of a break up. Since you can’t get divorced or have any assistance from the court in the breakup of your relationship if you’ve never been married, you can decide in a formal contract exactly how any shared property, like a home or a car, would be handled if you decided to go your separate ways. Not only that, but it can also help you set forth your expectations for a custody and visitation arrangement, should your relationship result in any children being born during the relationship.
Take this seriously. Without marriage, you can’t divorce – and divorce is, in and of itself, designed to protect spouses, especially spouses who earn the least. Before you make a decision to stay at home to raise your children or to purchase a home with your partner, really consider the consequences – and how to avoid negative ones. It may seem unromantic now, but your future self will thank you.
Best case scenario? It’ll all work out fine. Worst case scenario? You’ll have thought of that already, and come up with some solutions to help solve the worst of them.
Premarital Agreements or prenuptial agreements, are agreements that are signed and negotiated before the marriage takes place, and set forth what will happen in the event of a divorce.
Prenuptial agreements are challenging, especially because it seems like they mostly originate in a case where one partner has significantly more assets than the other partner. It’s hard to negotiate in a situation where all of the leverage seems to be firmly placed on one side over the other – but that makes it even more important that you do.
Ultimately, when it comes to a prenuptial agreement, there’s one big, fat, looming question: ‘Are you sure you want to marry this person?’ The prenuptial agreement will tell you a lot about what he is thinking, and how fair he is prepared to be. Are the terms a dealbreaker? To what degree can you negotiate?
Ultimately, the same advice always applies, to any agreement – make sure you’ve read it, understand it, and have had an opportunity to ask questions about it to someone who is firmly in your corner (again, NOT his attorney). Understand what the law would afford you without a prenuptial agreement, and be prepared to negotiate.
Marital Agreements take place after you marriage, but before a formal legal separation. Just because you didn’t negotiate a prenuptial agreement before you got married doesn’t mean that you can’t negotiate any kind of agreement afterwards.
If you find that after you’re married, circumstances change, and you want to negotiate an agreement to reflect that, you’re not alone. A lot of people negotiate marital agreements when one spouse decides to stay at home or makes any other kind of major change–and want to make sure that they’re protected in case something bad happens later on. We also see marital agreements sometimes when the parties are trying to save the marriage, like after adultery.
Marital agreements can do a lot of the same things that prenuptial agreements do which is, essentially, to modify the way the law automatically applies in divorce and custody cases. Usually, the biggest issues we see handled in these types of agreements relate to spousal support, the way retirement accounts will be divided, and how businesses will be valued and shared in the event that the marriage doesn’t work.
Sometimes, though, we also include other provisions included that are designed to save the marriage, like a requirement that the parties participate in marriage counseling or institute a date night. This often happens in the case of something, like adultery, taking place where the parties seriously considered separating. We’ll often also touch on things like spousal support and equitable distribution because getting back together after one party’s fault can compromise the other party’s options under the law. In the case of adultery, for example, if you sleep with your husband after you know that he has committed adultery, you’ve legally forgiven him. So, for many women, it’s necessary to know that he takes the marriage seriously and is willing to do something specific to give his wife the security she needs to focus on saving the marriage. It also allows both parties to see exactly what’s at stake in the event a divorce becomes necessary.
Separation Agreements are negotiated after you and your husband separate. A separation agreement is a legal contract, negotiated between the two of you, that formally divides all the assets and liabilities in the marriage. Everything from retirement accounts to real estate, credit card debt, student loans, personal property (like furniture, TVs, and computers), custody, and visitation is handled in a separation agreement.
Reconciliation Agreements provide protection in case you and your husband decide to get back together after a period of separation.
It’s not the most romantic thing you’ve ever heard, but having an agreement in place – whether before, during, or after your marriage–can provide you with a little extra security. Knowing what will happen in the event of a divorce or a break up can help both people feel safer. If you’re wondering what your next step should be to be sure that you protect yourself, your assets, and your children, give our office a call at (757) 703-4858 to talk about your options. No matter where you are in the process, there’s an agreement that can fit your needs and protect the things that keep you lying awake at night.