Thursday, May 12, 2011
Pre-Nuptial and Post-Nuptial Agreements: Do You Really Need One?
According to http://prenuptialagreements.org, this agreement is one “between two people that deals with the financial consequences of their marriage ending.” This site advises that a couple should consider this agreement if one partner has more assets or more debt than the other, you are a part owner in a business, or if you are remarrying. A pre-nuptial agreement (also known as a pre-marital agreement or an ante-nuptial agreement) can be looked at as an insurance policy. Forms can be used to help facilitate this process, but it’s important to get legal counsel in this area.
The history of the pre-nuptial agreement is quite interesting: these agreements were designed to protect the dowry and other possessions of women. Before the passage of the Married Women’s Property Act of 1848, a woman's entire property passed to her husband on their wedding day. And if the marriage ended (by either death or divorce), the wife could lose everything. So, these agreements were initially drawn up to spell out which property would remain with the bride’s family.
Wikipedia defines a post-nuptial agreement as “a written contract executed after a couple gets married, or have entered a civil union, to settle the couple's affairs and assets in the event of a separation or divorce.”
If you and your spouse did not sign a pre-nuptial before your wedding, a post-nuptial may be for you. According to http://www.EqualityinMarriage.org, your marriage is subject to your state's marriage laws, if there is no agreement in place. Without one, if your marriage ends, decisions about property distribution are left to a judge to make. When drawing up this agreement, items to consider include current and future income and debt, medical and disability insurance coverage, and any alimony that will be payable to a spouse. According to the site above, this agreement can also be used in case of the death of one spouse.
In the case of either a pre- or post-nuptial agreement, both parties should be represented by separate counsel.
Should my future spouse and I draw up one of these agreements?
Only you and your spouse can answer this question, and both of you should agree on how you want to proceed (one spouse should not be coerced into signing if he or she is not comfortable). Your perception of what these agreements represent (i.e., we are already planning for our marriage to fail) may determine if this is for you or not. Also, if you choose as a couple to move in this direction, it is no one’s business but your own…the decision is yours and yours alone. On a side note, this is a great thing to discuss during pre-marital counseling!
Your Planning Assignment
Consider this question carefully and wisely. Do your research and talk it over honestly with your future spouse.