Attorneys who regularly represent divorce clients will sometimes find themselves saying to a client, “Why didn’t you have a prenup?”   When representing the side that would not have benefitted from a premarital agreement the comment might be: “You should be thankful you didn’t sign a prenup.”  So what are prenuptial agreements and why do people sign them?

A prenuptial agreement is simply an agreement between two people who intend to marry that will become effective once they have married one another.  It can set out what will happen if the parties divorce, and may also limit a person’s right to inherit from his or her spouse.  For example, a prenuptial agreement  may provide that neither party will be required to pay spousal support or alimony to the other upon divorce.  It may provide that the assets of the parties will be divided in a certain manner upon divorce.  A prenup may also provide that when one dies the surviving spouse waives his or her right to inherit all or a part of the other’s estate. 

Couples normally sign prenuptial agreements for one of the following reasons:

     1.)     At least one of the parties has a child or children from a prior relationship.

     2.)     The parties are older and substantial assets were aquired prior to the marriage.

     3.)     At least one party has an active business and wants to make sure it remains his or her separate property even if the spouse becomes actively involved.

     4.)     The parties want to make it clear which items of property are marital and subject to being divided upon divorce and which are separate.

     5.)     One of the parties wants to eliminate or limit the possibility of paying spousal support upon divorce.

Before signing a prenuptial agreement you should engage an attorney skilled in divorce matters to go over the document in detail and advise you as to any modifications that should be made or even possibly to advise you not to sign the agreement.  It is also a good idea to take care of this detail of  an agreement months before the wedding as opposed to weeks or days.