Prenuptial agreements can be very good, or very bad. Mona Raskin, a divorce attorney practicing in Atlantic County, New Jersey, says that they have myriad advantages, from protecting an individual against divorce to safeguarding probate issues, as well. Lowell Halverson, of the Halverson Law Firm in Washington, points out that one reason the negotiation of a prenup can turn into a nightmare is that attorneys are conditioned to approach any issue with an oppositional attitude--even when their client is about to get married and such an approach is inappropriate.
Drawbacks
A prenuptial agreement is a business contract. It can protect property that you're bringing into the marriage. It can back up your Last Will and Testament. It can cement your understanding as to who is going to pay for what after you're married. The problem is that marriage is usually entered into for emotional reasons. To some extent, business and love are mutually exclusive. Drafting a prenup together means setting aside your emotions and looking at your assets and expectations in a cold, often adversarial, way. Some people don't have the capacity to do this and end up feeling threatened or hurt by the process. This can sabotage the marriage before it even starts.
Advantages
Many people enter into marriage without any idea how their partner is going to react when bill collectors come calling or a lucky lottery ticket is purchased. If you can get past the negotiation process with your heart intact, you've already jumped one hurdle that many couples won't face until they've lived together for awhile. A prenup can give you an honest idea of what your potential spouse expects from you and your marriage before you say "I do."
Misconceptions
With the exception of some probate issues, prenuptial agreements should adhere to existing case law. As Raskin points out, you can't write a prenup that says you're not going to pay child support in the event of divorce, assuming you have children, because every state's code mandates that a child is entitled to financial support from both parents. A prenup is rarely a wholesale upstaging of family law, and if it tries to be, you might want to think twice about signing it.
Uniform Premarital Agreement Act
As of 2009, 27 states had adopted this federal act and four more were thinking about it. These states have entered consistent laws into their statutes to deal with enforcing the terms of premarital agreements. In the absence of this Act, litigation over the validity of prenups can be a free-for-all because it's based on case law, and case law changes each time a judge hands down a decision weighing the minutia of a matter that may or may not reflect your own circumstances. If you're considering entering into a premarital agreement, determine whether your state has adopted the Uniform Premarital Agreement Act so you can have a reasonable understanding of what you're getting into.
Personal Considerations
As prenuptial agreements have become more accepted over the years, some couples may think they need one when, in fact, they don't. If what each of you expects from your marriage is essentially the same as what your state's family law statutes already provide for, then a prenup can be redundant.
References
- Mona R. Raskin, Esquire; Family Law; Linwood, New Jersey
- Prenuptial Contracts: Pratfalls, Pitfalls and Pitbulls
- MedLawPlus: Premarital Agreements - State Law Breakdown
