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The most important thing to understand about premarital agreements is this: every marriage creates a binding agreement between the spouses. In the usual case, where there is no premarital agreement, the terms of the spouses’ agreement are set by the state through its family, trust, and estate laws. These one-size-fits-all laws are frequently a poor alternative to an agreement tailored to the specific needs of each spouse. Therefore, a premarital agreement is highly recommended for most couples preparing for marriage.
Despite the many benefits of entering a premarital agreement, most couples refuse to consider one because of a combination of myths and social stigmas that accompany them. The most common of these is that considering a premarital agreement shows a lack of faith that the marriage will be permanent. The reasoning is simple to understand: we don’t need a premarital agreement because our marriage is never going to end.
The flaw in that reasoning is equally simple to understand: every marriage binds the parties to an agreement as to what will happen in the event of separation and divorce. Choosing a premarital agreement allows the parties themselves to determine the terms rather than agreeing to whatever the state puts in place, which can change at any time.
In addition, premarital agreements can be written to cover aspects of the relationship that have nothing to do with separation or divorce. For example, parties can choose how they will make decisions about buying and selling property during the marriage or how they will manage their finances. These kinds of provisions are especially important to the average couple because they can actually improve the quality of the marriage and make divorce less likely. Money is by far the most common cause of marital problems and divorce.
While premarital agreements can include a great variety of terms, they are particularly suited to deal with the following:
- The rights and obligations of the parties in any property owned or acquired by either party at any time.
- The right to buy, sell, mortgage, and otherwise manage and control property.
- What happens to property upon separation, divorce, death, or other specified events.
- The amount of alimony or spousal support, including elimination of alimony.
There are also limitations on what a premarital agreement can do. For example, a premarital agreement can not:
- Adversely affect the right to child support
- Modify or eliminate alimony if doing so will cause the dependent spouse to be eligible for a public support program.
- Address any matter in violation of public policy or a statute imposing a criminal penalty.
When discussing and negotiating a premarital agreement, it is in each party’s best interest to have a separate attorney. While a single attorney can draft the agreement, he can only represent one of the parties, not both. According to state ethics rules, an attorney may not give legal advice to the party who is not his client, other than the advice to seek separate legal counsel.