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 it is the smart one for many couples. Prenuptial agreements – also called Prenups, premarital agreements, or even antenuptial agreements – allow couples to protect their separate property during a marriage. Good prenuptial agreements should contain detailed descriptions of each partner’s significant property and debts. 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, 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 greatly affect your divorce. Parties to a premarital agreement may contract concerning 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 the law of this state other than this act; (3) purports to modify the grounds for a court-decreed separation or marital dissolution available under the 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 that defines the rights or duties of the parties regarding custodial responsibility is not binding on the court.