Prenuptial & Postnuptial Agreements FAQs

I am getting married for the second time. Both of us have children from our first marriages, and we will be living in my house after we're married. Do we need a prenuptial agreement? It doesn't sound very romantic.

You do not need a prenuptial agreement, but it is often a good idea. Negotiating a prenuptial agreement does not always seem like the most romantic choice but, for many couples, it is the smart one. Prenuptial agreements - also called Prenups, premarital agreements or even antenuptial agreements - allow marrying couples to protect their separate property during a marriage. Good prenuptial agreements should contain detailed descriptions of the significant property and debts owned by each partner. Depending on the nature and complexity of these assets, a prenuptial agreement can be just a few pages - or a few hundred. Prenups make sense if you have assets you want to preserve for children from a previous marriage. In the case of remarriage, one or both spouses may already have significant assets, and may want to arrange that family members from the first marriage inherit property and assets. Once you are remarried, in fact, your new spouse has an automatic entitlement to part of your assets, unless estate planning documents, such as a prenuptial agreement, create other arrangements.

What effect does our prenuptial agreement have on our divorce?

As long as the court finds the prenuptial agreement is enforceable, it can have a big effect on your divorce. Parties to a premarital agreement may contract with respect to mutual property rights and obligations; rights to acquire, manage, and dispose of property; disposition of property on separation, dissolution, or death; modification or elimination of spousal support; wills and trusts; and death benefits from life insurance policies.

However, the Uniform Premarital and Marital Agreements Act ("UPMAA") lays out very specific provisions that are considered unlawful. For example, the following provisions are considered unlawful under the UPMAA:

  • (a) In this section, "custodial responsibility" means physical or legal custody, parenting time, access, visitation, or other custodial right or duty with respect to a child.
  • (b) A term in a premarital agreement or marital agreement is not enforceable to the extent that it: (1) adversely affects a child's right to support; (2) limits or restricts a remedy available to a victim of domestic violence under law of this state other than this act; (3) purports to modify the grounds for a court-decreed separation or marital dissolution available under law of this state other than this act; or (4) penalizes a party for initiation a legal proceeding leading to a court-decreed separation or marital dissolution.
  • (c) A term in a premarital agreement or marital agreement which defines the rights or duties of the parties regarding custodial responsibility is not binding on the court.

As it relates to child custody, parenting time and visitation in particular, prenuptial agreements in the United States cannot regulate these matters because these determinations have to be decided based on the best interests of the child. The best interests of the child is something that can only be determined by a family court judge based on the facts at the time of the judgment.

What can you tell me about the value of getting a prenuptial or post-nuptial agreement in my area?

Negotiating a prenuptial agreement does not always seem like the most romantic choice but, for many couples, it is the smart one. Prenuptial agreements - also called Prenups, premarital agreements or even antenuptial agreements - allow marrying couples to protect their separate property during a marriage. Good prenuptial agreements should contain detailed descriptions of the significant property and debts owned by each partner.

A well drafted premarital agreement can protect the inheritance rights of children and grandchildren from a previous marriage. If you have your own business or professional practice, a premarital agreement can protect that interest so that the business or practice is not divided and subject to the control or involvement of your former spouse upon divorce. If one spouse has significantly more debt than the other, a premarital agreement can protect the debt-free spouse from having to assume the obligations of the other.

If you plan to give up a lucrative career after the marriage, a premarital agreement can ensure that you will be compensated for that sacrifice if the marriage does not last. A premarital agreement can address more than the financial aspects of marriage, and can cover any of the details of decision-making and responsibility sharing to which the parties agree in advance. A premarital agreement can limit the amount of spousal support that one spouse will have to pay the other upon divorce. A premarital agreement can protect the financial interests of older persons, persons who are entering into second or subsequent marriages, and persons with substantial wealth.

Kirk Stange has written a full-length book through Thomson Reuters titled: Prenuptial Agreements Line by Line if you are looking for more information on the topic.

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