What is a Prenuptial Agreement and Why Should You have One?

Put simply, a prenuptial agreement is a contract between two people who are about to get married detailing what will happen, especially with regard to property, in the event of divorce or death. In certain situations, the value of a prenup may seem obvious.  If you are about to get married and you own a business or possess significant assets, it is understandable that you’d want to protect what you already own. People with significant wealth may often sign prenups before marriage, but it’s a common misconception that these documents are just for people with a lot of money.

On the contrary, anyone can benefit from having a prenup in place. Maybe you or your partner, or both of you, have children from a previous relationship.  In that case, a prenup can help you establish which assets should be preserved for them. Or maybe this isn’t your first marriage, and you want to be certain that you won’t lose property you’ve already acquired if your marriage comes to an end. No matter what your circumstances, taking a serious look at your and your partner’s financial situation can save major headaches down the road. The only real requirement for a prenuptial agreement is a desire to spell out what will happen if the marriage does not last forever.

When Should You Create a Prenup and What Can It Cover?

The best time for you to sign a prenup is a few months before the wedding.  Waiting until right before the wedding will just add stress to an already hectic occasion. From a legal standpoint, a last-minute prenup might also look rushed, or like it was signed under duress, raising the possibility that a court might invalidate it. You and your partner need to provide an honest list of your assets, and you should both have an attorney, preferably an estate planner who has experience with prenuptial agreements.

While most people think of a prenuptial agreement as a financial document, a prenup can cover a great many subjects, as long as the document complies with state law. Most prenups include issues like premarital and marital assets and debts, division of property (like who would get the family house after a divorce), and whether someone will pay alimony in the case of divorce. They can also include incentives for certain types of behavior, or cover the consequences of infidelity.

It is important to remember that prenuptial agreements in Arkansas are subject to Arkansas state law. This means that, while there may be issues or subject matter you would like to include, you need to ensure that the provisions of your prenup are enforceable. An experienced estate planning attorney will help you go over everything and make sure your interests are well served.

Why Prenups Make Sense For All Income Levels

It is clear that many people think of prenuptial agreements as a tool utilized by the very wealthy to keep their assets safe in the event of divorce. While prenups do serve that purpose, they do so for all income levels. When you consider the issues associated with the average divorce, the biggest and most costly legal battles involve property and asset ownership — the very subjects at the heart of most prenups.

Since these issues are among the most costly in a divorce, having an enforceable prenuptial agreement in place beforehand can make divorce go more smoothly, and save a lot of money and emotional upset in the process. This is especially true when two people in two different financial brackets get married and divorced; it can save both a lot of unforeseen expenses in the future.

Is a Prenup Enforceable?

If it is drawn up and executed correctly, and is in compliance with state law, a prenup will be legally binding and will usually be held up in court. Ensuring your prenup is not invalidated requires avoiding common mistakes, though, such as:

• You or your partner signing, or appearing to sign, under duress
• Incomplete financial disclosures being made by you or your partner
• Including provisions having to do with child support and/or the custody of as-yet-unborn children
• You or your partner failing to consult with an attorney
• The prenup being signed too close to the wedding, like in the car on the way to the church

It is important to remember that a prenuptial agreement is not a substitute for a will, a trust, or any other document that is part of your estate plan. Even if you have a prenuptial agreement in place, you still need a legally binding will, trust, or other legal estate document to protect your assets and to ensure they are distributed according to their wishes upon your death.

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Creating a prenuptial agreement does not have to be unromantic or difficult. In fact, crafting a prenup can be one of the first rational acts of a married couple acting in partnership with each other. Spending a small amount of time creating an agreement you and your partner can live with will provide peace of mind, and a greater feeling of financial security, for everyone involved in the union. Contact Estate Planners of Arkansas today at 501-414-8965 for a free consultation.

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1. Prenups Are Private

A prenuptial agreement is a private contract. You do not have to worry that your family members, children or anyone else will know the contents of a prenup, particularly if you include a confidentiality clause in the agreement. The details of a prenuptial agreement stay between you, your spouse, and your attorney.

2. Prenups Aren’t Just for the Rich

Generally, couples sign a prenup to protect assets they have before marriage. While most people assume it benefits the wealthier spouse, it also gives the other party the opportunity to see the full financial picture. Because disclosure is part of the negotiation process, both spouses have to be open about the assets they own.

In addition, prenups let couples decide on matters such as spousal support and issues related to the children, which are important regardless of how much money you may have. The need for a prenuptial agreement does not hinge on the expansiveness of your assets—anyone can and should negotiate a prenuptial agreement.

3. Prenups Should Be Negotiated Early

Planning a wedding is stressful enough, so many couples may put off negotiating a prenup. However, this should be taken care of at least a few months before the wedding, in order to give both parties time to consider the terms. If you rush through the contract before getting married, a judge may be more tempted to throw it out should a marital asset issue ever come to court.

4. Prenups Can Also Be Postnuptial Agreements

Prenups guard against unknown events and typically help spouses keep their assets. However, your opinion of how assets should be split may change after you get married. A postnuptial agreement allows spouses to revise the terms of their earlier arrangement. A contract can change and grow with the needs of the parties, and it generally can be revised at any time.

5. Prenups Are Generally Enforceable

Like any contract, a court can say that a prenup is unenforceable. However, as long as it follows contractual guidelines, a court should enforce its terms. Not rushing the process and fully disclosing all assets help eliminate any chance a court will declare the contract invalid.

Premarital agreements aren’t offensive to either side. Your individual circumstances will affect the specific terms of your prenuptial agreement. Speak with an attorney today about how you can protect yourself and eliminate worry as you enter into a new phase of life. See how our experienced attorneys at Arkansas Estate Planners can help you today, by contacting us at (501) 414-8965 for a consultation.

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