Others don’t see
prenups as unromantic after all and think that they are a realistic
and practical choice for many couples. Some believe that if they
enter into a marriage owning a home or another asset that they worked
hard to obtain, they should be able to keep it if the relationship
goes south. In this way, prenups make particular sense for couples
who have amassed some wealth before marriage.
What is a Prenuptial Agreement?
A prenuptial agreement is a private contract that a couple enters
into before marriage. Prenups are valid and enforceable in all 50
U.S. states. The purpose of entering into such an agreement is for
the couple to protect their separate premarital assets and to provide
specific terms that will govern the relationship as well as a possible
future breakup. Essentially, the couple settles, in advance, financial
matters as well as lifestyle matters.
For financial matters, state laws generally indicate that a spouse
has the right to share ownership of property acquired during marriage.
The spouse may have to share the debts incurred during the marriage
and in the management and control of any marital or community property
(property acquired during marriage), including the right to sell
or give it away. Thus, if such state laws are not suitable, a couple
may want to enter into a prenuptial agreement as a way of remaining
in control of how property should be divided in the event of divorce
or death.
However, prenups don’t only deal with financial or property
matters. They can also include lifestyle issues. For example, some
couples have been known to include clauses banning mother-in-law
sleepovers, limiting a wife’s weight to 120 lbs or she must
give up $100,000.00 of her separate property, requiring a husband
to pay a fine for being rude to his wife’s parents, or allowing
the husband to watch only one football game every Sunday! These
lifestyle clauses are just as legal as the financial and property
clauses mentioned above, as silly as they may seem.
Tips for Creating an Enforceable Prenup
After a couple enters into a prenuptial agreement, the big question
is whether the prenup will be upheld in a court of law in the event
of divorce. For the most part, the answer to this question is yes.
However, bear in mind the following information that will help ensure
that the prenup is enforceable.
First, start the negotiation process with your
soon-to-be spouse well in advance of the wedding itself. It is unwise
to present a prenuptial agreement on the eve of the wedding, when
attention will be focused on issues like mandaps and henna
instead of financial, property, and lifestyle matters and little
time will be available to thoroughly consider the agreement.
Second, both halves of the couple might want to
hire their own attorneys before deciding to sign the prenup. Since
a prenup is a contract between two people, it would be a conflict
for one attorney to represent both sides in such a matter. Each
person should consult with their own attorney before entering into
a prenup, as it is too emotional a time and too sensitive a subject
for the couple to negotiate between themselves.
Third, you must both disclose a comprehensive list
of assets and liabilities to one another in order for the prenuptial
agreement to be enforceable. Each person should consider providing
income tax returns and balance sheets early in the process. A court
is not likely to enforce an agreement if there is not a full and
accurate disclosure of assets and liabilities or if there is fraud
or misrepresentation.
Perceptions of Prenups in the South Asian Community
Prenuptial agreements have become increasingly popular over the
years with the influence of Hollywood couples. However, the idea
of entering into a prenup is still a new concept among South Asian
women. Some women really like the idea of being able to protect
the assets and wealth they have amassed before entering into a marriage.
Sheila, a single, 38-year-old cardiologist, says
she is open to the idea of entering into a prenuptial agreement
if and when she gets married because she has many investments that
she worked hard to obtain. Sheila says that, for her, entering into
a prenup would be a “smart thing to do to protect the financial
success [she] has been so lucky to experience over the past ten
years.”
On the other side of the coin, Deepa, a single, 29-year-old pharmacist,
is adamantly opposed to the entire idea of a prenup. She says that
entering into such an agreement “implies distrust in the relationship
before getting married.” Deepa adds, “Why would a person
plan for a divorce before entering into a marriage? It’s just
plain silly!” In this way, Sheila and Deepa’s views
on prenups are not too different from how most women feel about
them: they are either open or adamantly opposed to the idea.
The bottom line is that prenups are not for everyone. However,
keep in mind that even broaching the subject of entering into a
prenuptial agreement may provide a couple with a golden opportunity
to discuss their finances as well as their beliefs about money and
lifestyle choices before they get married. This might not be the
most enjoyable topic of conversation, but these important discussions
may clear up important issues that they will need to face as a married
couple. Prenup or not, the more a couple becomes comfortable with
discussing such issues, the quicker they will come to agreements
about their viewpoints on money and finances.
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