If you are like most people, you were probably introduced to the idea of a prenuptial or premarital agreement through television or a movie. Just about any show that centers around divorce for rich people usually involves a premarital agreement. More commonly, these documents are referred to as prenuptial agreements or prenups for short. The wealthy spouse is always advised to have a prenup on record to protect him or herself from a greedy spouse marrying only for money. Typically, the plot will revolve around the prenup, not including language about one crucial subject or not being honored by a judge for some technicality.
Even though prenuptial agreements typically come to mind more often in movies and television shows than in your day-to-day life, you should know that a premarital agreement is a real thing and is entered into regularly by people just like you and me in our community. The truth of the matter is that a premarital agreement can be a wise document for people to enter into depending upon circumstances. This is true despite the sometimes lousy reputation that these documents have.
While we are at it, I think it is worthwhile to talk about why premarital agreements have such a negative reputation in our society. Ironically, they do in the 1st place, considering that Agreeing to a premarital agreement with your spouse is a great way to avoid a divorce. We hear about skyrocketing divorce rates because of the Coronavirus pandemic, yet we don’t necessarily hold premarital agreements in the highest of regard. I think this is a mistake. The fact is that if more people saw fit to draft pre-marital contracts, they would have a better shot at staying married. Additionally, those who got divorced would have a more manageable and less contentious divorce where a premarital agreement is in place.
Premarital agreements are perceived as being suspicious or sketchy because they involve money. Note that a premarital agreement cannot consider such topics as child support, child Visitation, or anything having to do with child custody. A premarital agreement does primarily deal with financial matters as opposed to family matters related to the children. When it comes to money, many of us are cynical to the point where we assume that nefarious intentions are in play regarding these types of documents.
It doesn’t help when television and movies include prenuptial agreements within a plot of many shows we watch and place them in a negative light or at least cast the characters as suspicious when they inquire about a premarital agreement or something similar. If we could get past the notion that premarital agreements are done primarily out of greed or tricking the other party, more people would consider one before their marriage. This could avoid a lot of problems people have concerning complicated divorces or even mistrust during the marriage.
How do I believe a premarital agreement could help people who are going through difficulties in their marriage regarding trust? Isn’t money and money fights inherently about faith and not deception? If you believe that people that enter into these types of arrangements are deceptive or untrustworthy, then today’s blog post is for you. I will share with you why I believe that premarital agreements can help people going through difficult patches in their marriage and why premarital and marital property agreements are beneficial for people of all different types. You don’t have to be rich to benefit from a prenuptial or marital property agreement.
Work on the problem spots of your marriage before you even get married
many couples choose to go through something called pre-marriage counseling before they tie the knot. Pre-marriage counseling can be with a religious leader, counselor, therapist, or anyone the couple chooses. The therapy or counseling sessions will touch on common topics to allow the participants to engage in honest discussions about issues that might not come up in conversation. Talking about their concerns about the wedding, their families, their histories with marriage and divorce, and other matters are specific discussion topics in these settings.
What does not come up very often in everyday life should come up in these therapy conversations. You may not know how your significant other feels about children, religion, or any subject in between simply because they don’t come up. Many folks don’t bother asking about it difficult to discuss matters until after the marriage when it is too late. My theory on things like This is why not discuss your wedding to see if there will be a problem with having a different viewpoint on them with your partner. If some subject will be a deal-breaker for you and your significant other, then why not find this out before getting married?
Despite the positives that can come out of premarital counseling, it is my anecdotal opinion that relatively few people go through any pre-marriage counseling. If you are uncomfortable with the idea of opening up with a stranger about your personal life, then a premarital agreement or prenuptial agreement may provide the same benefit. Here is what I mean by that. A prenuptial agreement allows you and your spouse to be an opportunity to negotiate on how financial matters will be treated in your divorce. Rather than dealing with them while you and your spouse are not on the best of terms, some couples choose to hammer out these issues before your marriage, thus making divorce more manageable and less burdensome for both of you.
The premarital agreement also allows the two of you to focus on topics that might otherwise lead to divorce, thus helping you all avoid this situation in the 1st place. For example, if you and your spouse behave not discussed anything regarding your debts, personal finances, and things of that nature, then you all may be in for a rude awakening once you get married. I’ve seen many spouses who have gone through a divorce be shellshocked by the knowledge that their spouse is deeply in debt or is facing other financial hardships once they get married.
This is not to say that these couples should not have gotten married. Still, it is to say that different decisions may have been made during the marriage were this information to be disclosed at the beginning of the wedding or even earlier. As it stands, many couples take on additional burdens as far as finances are concerned when more prudent decisions would have involved decreasing debt and saving more money. A premarital agreement forces couples like you and your partner to go through the sometimes-tricky financial matters related to your lives and charted course for how to divide them up upon a future divorce.
Couples that go through premarital agreement negotiations will find out quickly what the sore spots in their relationship are. For example, suppose you are coming into a marriage with little education or work history. In that case, you may feel vulnerable regarding your ability to provide for yourself or something to happen to your spouse. Suppose your spouse to be is the primary breadwinner in your relationship. In that case, you may be sensitive about subjects like spousal support or a division of your community estate where you all get a divorce. Rather than worry yourself about this limitation of yours, as far as income is concerned, why not use the information you learn in pre-marital negotiations to better your circumstances?
Instead of being angry or spouse or sensitive about what would happen to you after divorce, why not use this information as an opportunity to propel yourself towards trade school, a certification of some sort, or even an associate’s level degree? You can use the training and education you receive to build a career for yourself during your marriage and put yourself in a more advantageous situation should a divorce arise. A spouse who has options in a divorce is typically a spouse who negotiates better and comes out with a more beneficial circumstance at the end of a case. If you feel like your back is against the wall during negotiations, you will not negotiate as well, which could impact your life after divorce.
These unfavorable circumstances can be avoided in part if you work with your fiancé to negotiate a premarital agreement. Operating with the same information in mind is undoubtedly beneficial to both of you and can provide you with peace of mind as you go into marriage. While there are no guarantees as to how your marriage will go, I can tell you that being honest with one another will do one of two things: 1) it will either cause you all to have honest discussions about how to fix problems that have come up or 2) or it will cause you all to call off the marriage and instead look for relationships that are better suited to each of your strengths and weaknesses. Either way, he will have been better off than had you preceded into a marriage that may have been geared more towards failure than success.
How can a family law attorney play a role in negotiating a premarital agreement?
All this brings us to the issue of today’s blog post. Namely: how does a family law attorney figure into the negotiation of a premarital agreement? In the discussion we have had so far today, I have not brought up attorneys one time. However, family law attorneys often play a crucial role in the drafting and negotiating of a premarital agreement for four couples across our state. In the remainder of today’s blog post, we will discuss why that is.
To begin with, the family law attorney provides you with experience. It is possible to negotiate and sign a premarital agreement without the assistance of an attorney. However, as with anything else, it pays to have experience on your side. There is no telling if you are getting a good deal or even covering all of your bases unless you have someone there who’s helped other people negotiate a premarital agreement. For you and your fiancé, you may have good intentions and a good basic knowledge of family law, but even that cannot prevent you from missing steps along the way.
Family law attorneys can help you identify particular areas of your marriage that may be problematic and lead to a divorce. In cases like these, the attorney can then help you negotiate terms that can assist you if a divorce becomes necessary. After all, isn’t that the primary purpose of your premarital agreement? That is, to help you identify areas of your marriage and plan for them in the future so that a long and tedious divorce is not necessary? The benefits of having an attorney on your side in negotiations are many.
Having an attorney assist you does not mean that you are ganging up on your fiancé. I would recommend both sides have an attorney to represent each of you. I absolutely would not recommend having one attorney for both sides. Although you and your spouse to be are on the same team as far as your marriage is concerned, that does not mean that your interests are precisely the same at that moment in time; as a result, you and your spouse should have separate attorneys advising you about the positions you are taking in your negotiations.
For example, one of the excellent parts of premarital agreement negotiations is that you and your spouse can sidestep the Texas rules regarding community property and create your circumstances when it comes to dividing up the marital estate upon your divorce. Depending on your circumstances, both you and your fiancé may be coming from different positions and have other stakes at risk when negotiating on these subjects. As such, a single attorney would not be able to represent either of your interests in negotiations adequately.
It is a good idea to have advice from your attorney while negotiating these terms and allow your spouse to have the same opportunity to consult with a lawyer. My position on this subject is that you can never have too much advice, and it is not like negotiations over a premarital agreement are like negotiations in a divorce. They’re much less contentious most of the time, and both you and your spouse are entering into these negotiations in goodwill. An attorney will not want to stir up trouble during these negotiations and will be there to help you draft the agreement once decided upon and help you negotiate during that phase.
Another aspect of this discussion to keep in mind is that a premarital agreement is not worth the paper that it is written on unless it can be enforced in the future by a family court judge. This is important so let’s take some time to discuss it in greater detail. If you and your fiancé negotiate a premarital agreement, it has no impact on your marriage until you all get a divorce. In that case, the premarital agreement will be attached to the original petition for divorce and made a part of the court’s record of your case. Issues regarding finances in the marital state will defer to the pre-marital agreement.
What you don’t want to happen is to go through all the process of negotiating this premarital agreement only to have it be found unenforceable or void by a family court judge. For example, if the terms are unclear, terms are unconscionable, or if it is shown that one party was forced to negotiate or sign under duress, the document will not be enforced in the future. However, if both sides have an attorney at their disposal during negotiations, there is a great presumption that the document should be valid by a court in the future.
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