By PARIS WOLFE | October 21, 2021 | Currents Magazine
Prenuptial agreements are NOT a map for divorce. In fact, done with full disclosure, experts suggest they can even be good for a marriage. Whatever the perception, they’ve been on the rise in recent years, according to Elizabeth Green Lindsey, president of the American Academy of Matrimonial Lawyers. Lindsey has been a practicing family lawyer for more than 35 years and is a shareholder with the firm of Davis, Matthews & Quigley, P.C., in Atlanta.
Prenuptial agreements are, basically, an agreement made by a couple before marriage to deal with their assets if the marriage ends.
It is increasingly common for subsequent marriages and older couples to have prenuptial agreements to preserve assets for children from early relationships and protect their estates from the care and expenses of the new spouse.
“Prenuptial agreements are very good for several reasons,” says Lindsey. “First, they require that the parties have frank and sometimes difficult conversations about money before they get married and they need to really understand their respective values on money. Money is often one of the biggest areas of conflict.”
This sharing of information can actually prevent future conflicts and, thus, make a relationship stronger.
“The prenuptial agreement discussions can also lead you to understand family dynamics, and how much control the in-laws might have in the marriage,” she points out. Or, even adult children, in the case of older couples.
And obviously, prenuptial agreements allow the parties to set expectations on what would happen if there were a divorce or death. “Prenuptial agreements protect family assets like a business or other investments, and that can be a very good thing to avoid a contentious divorce,” she says.
The agreements only work when done well. “Prenuptial agreements are contracts, and the courts like to enforce them if the procedures are followed in the negotiation and execution of the agreements,” she says. By procedures, she explains, “Generally, there must be full disclosure of all assets and income, the agreement cannot be unconscionable, and the facts and circumstances must make it fair to be enforced.”
To meet those requirements it is recommended that each party to a prenuptial agreement have an attorney. “A lot can be gleaned about a future spouse with how each intends to treat the other because presumably they are negotiating when the parties are supposed to be in love and want to marry,” notes Lindsey.
When it comes to developing the contract, Cleveland attorney Andrew Zashin says one size does not fit all. Zashin is co-managing partner at Zashin & Rich in Cleveland and Columbus and has practiced law for nearly three decades. He is also an adjunct professor of law, teaching family law, at Case Western Reserve University.
The unique nature of each person’s life and assets requires individual attention.
Of course, prenups, as they’re colloquially known, are most common for people with an imbalance of assets and in subsequent marriages. “If you already own a business or own a house or have already been married and are bringing assets into a marriage, you want to make sure you leave with those same assets,” says Zashin.
Another scenario, he points out, “If you have children from an earlier marriage you want to be sure the assets of the earlier marriage will go to the children rather than someone else.”
Key points to create a valid prenup include:
- Disclose ALL your assets. That means both parties share how much money and/or debt they have, the value of businesses and real estate, etc. “The more disclosures and accuracy of disclosures the better you are in developing a legal agreement,” says Zashin.
- Give yourself enough time. That means enough time to collect all your documentation such as brokerage statements, house deed, current fmancial statements, bank account numbers, proof of ownership for cars, boats and more. Then, allow enough time to discuss and mediate the agreement. Finally, allow the parties at least 30 days to review the contract.
- Be reasonable in property division. Spousal support components differ by slate. Ohio courts, says Zashin, are less likely to consider this provision.
- Review wisely. That means both parties should have their own representation reviewing the final document. “When the monied party pays for the lawyer, it’s a questionable circumstance,” cautions Zashin. “The further from the wedding, the more back-and-forth discussion in advance, the more legitimacy the document will have.”
“Don’t be lazy in creating the agreement,” says Zashin. “The more work you do up front the better protected you’ll be if something happens. Once you sign it, you can agree to terminate, but you can’t alter its provisions.”
This article originally appeared in Currents Magazine.