While it may not be the most romantic course of action, a prenuptial agreement is an important topic of discussion when planning your marriage. Despite belief to the contrary, entering into a prenuptial agreement in no way increases the likelihood of divorce. In fact, a common source of arguments between couples is finances. Talking candidly about your assets, liabilities, finances, and plans for the future can minimize disagreements and/or surprises down the road.
A prenuptial agreement also does not mean you are planning on a divorce. Rather, it is a practical tool for you and your future spouse to formalize in writing what you want to happen if unforeseen situations occur. A prenuptial agreement can also save you money and reduce conflict in the event of separation, divorce, or death.
Protect Non-Marital Property
One of the major benefits of entering into a prenuptial agreement is that it allows you to protect the assets you have acquired prior to your marriage as well as any inheritance you may receive during the marriage. Identifying these assets is important because in the event of a divorce or legal separation, your spouse could not claim an interest in them if you have entered into a prenuptial agreement. Without a prenuptial agreement, any interest, dividends, or earnings generated by these assets would be considered marital. This can become an extremely complicated situation when the earnings are then reinvested and commingled with the pre-marital asset.
Define Marital Property
A prenuptial agreement can also be used to define what assets and debts will be considered marital and subject to division in the event of a divorce. This is an opportunity to clarify exactly which assets are being gifted to the marital estate and which are being kept separate.
Waiver of Maintenance
In Missouri, one spouse can be ordered to pay maintenance (or “spousal support”) to the other spouse, depending on several variables including the comparative earning potential of each party, the standard of living established during the marriage, and the duration of the marriage. Maintenance cases are often highly contentious and can result in an indefinite obligation to pay your spouse.
A prenuptial agreement can waive maintenance all together. If waiving maintenance is not an option, you can provide specific guidelines as to how the maintenance obligation would work in the event of a divorce. For example, you may wish to set the amount and duration of payments up front.
Waiver of Attorneys’ Fees
One spouse can be ordered to pay the other spouse’s attorneys’ fees in a divorce. There are multiple considerations including each spouse’s ability to pay. However, you can eliminate this issue altogether by addressing it in your prenuptial agreement and agreeing that each party will pay their own respective attorneys’ fees.
The prenuptial agreement can include a provision that if either spouse challenges the prenuptial agreement, that spouse pays the other spouse’s attorneys’ fees.
Protect your Estate Plan Goals
If this will not be your first marriage and you have children, you have likely thought about what and how you want your children to inherit from you. A prenuptial agreement can serve to support and protect your estate plan goals.
It is worth noting that in Missouri, even if you have a will, your spouse is legally entitled to take one-third of your estate unless a contractual arrangement is made specifically waiving that right. Without such a waiver, your spouse can exercise the right to take one-third of your estate even if you leave your entire estate to your children in your will.. A prenuptial agreement can include language specifically waiving this right.
A prenuptial agreement can also detail certain provisions for your spouse in the event of your death. For example, you could provide language that your spouse has the right to reside in the marital home for a certain length of time after you pass away or that you will provide life insurance designating your spouse as the beneficiary.
If you are considering a prenuptial agreement, your future spouse should obtain an attorney and have the agreement reviewed before signing.
The prenuptial agreement is a tool for you both to protect your assets and plans for the future. Visit us on our website or call us at (314) 449-8830 to see how we can help!