Should You Have a Premarital Agreement?

 Posted on January 05, 2017 in Family Law

When a couple decides to marry, they have many decisions to make. A key legal decision they must make is whether to have a premarital agreement.

A premarital agreement is a contract made by a couple before marriage. It is usually used to say how property will be divided in the event of divorce or death, but it can cover many other issues in the marriage as well. Premarital agreements are most commonly used in second marriages when there are children from a prior marriage or when one party to the marriage is a lot wealthier than the other.

There are several benefits to having a premarital agreement. Working out difficult issues in advance can help avoid problems later. Also, a premarital agreement can help protect an inheritance to a child from an earlier marriage. Finally, if a divorce does occur, the premarital agreement may make it go easier since some key issues will already have been decided.

There are also disadvantages to having a premarital agreement. One is the discomfort in addressing issues of divorce before the marriage. Another is that there's no guarantee a court will uphold the agreement. Also, even if an agreement is upheld, there's no assurance the entire agreement will be upheld. For example, provisions that address child custody or child support issues are not binding on a court, since the child's best interests are the deciding factors. There are several grounds for invalidating premarital agreements. They vary from state to state, but generally include:

• one side was pressured into signing;
• the agreement was not "fair and reasonable" when made, or when it's to be enforced, it is so one-sided that it would be unfair to uphold it; or
• one party hid important information.

Premarital agreements are becoming more common due to the high number of divorces in our society. Whether a premarital agreement should be used depends on the circumstances of each case. If couples are considering a premarital agreement, they should seek legal help. Laws regarding making premarital agreements are complex, and each party should be fully aware of what he or she is signing.