When a couple gets divorced, the court splits up everything the couple owns in a way that the court feels is fair to both spouses. Sometimes, that means that the court will split assets evenly between the spouses that were owned individually by one spouse, prior to the marriage. It also means that regardless of the spouses’ respective earnings, any wealth that the couple accumulates during the marriage will be evenly split 50/50. A premarital agreement, also known as a prenuptial agreement, allows the couple to determine how money and property will be split up in the event of a divorce, rather than the court. There are a lot of common misconceptions about prenuptial agreements, which are explained below:
Misconception #1: Prenuptial agreements are always enforced by a court, even if that means one spouse is left with nothing.
Truth: prenuptial agreements are often enforced, but not always. The important part is that it must be fair to both people. A court can and will disregard parts of or an entire prenuptial agreement if it is not fair. So, if a prenuptial agreement would leave one spouse without any money or without sufficient means to support themselves, it is likely that the court will not enforce that agreement.
Misconception #2: Prenuptial agreements only benefit very wealthy couples.
Truth: Prenuptial agreements can be signed by anyone, including a couple that doesn’t have a lot of money when they get married. The point of the agreement is that the couple enters the marriage with a common understanding about how any future conflicts will be resolved in a way that feels fair to both people. This means that the agreement can address things other than money. It can address how the couple, together, will acquire and manage assets, it can outline what things the two want to keep separate from the other (such as student loan or credit card debt), or it can explain how the couple wants to make decisions regarding children, even if they don’t have any yet.
Misconception #3: Getting a prenuptial agreement means the couple is expecting the marriage to fail.
Truth: Since a prenuptial agreement is intended to reflect how the parties want to resolve conflicts in the future, a prenuptial agreement can help a marriage by setting clear expectations. Since it has to be negotiated before the marriage, it helps the couple discuss issues like alimony or how to raise children, or what will happen to the marital home, if they should ever separate. By discussing these things in advance, the couple enters the marriage with very clear understanding of how they will resolve things in the future.
Misconception #4: You have to sign a prenuptial agreement a certain number of days before a wedding.
Truth: While it is a good idea to get your prenuptial agreement completed and signed in advance of a wedding, there is no set time before a wedding that it must be done by. The most important thing is that the agreement was signed by both people voluntarily, without any coercion or duress. Additionally, both people must fully understand what the agreement means, and how it affects them. It is extremely important for both people to have their own lawyer, to help them be completely confident that they understand and are happy with the agreement before they sign it.
