What You Need to Know About Prenups

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Prenuptial agreements are becoming increasingly common and are more often upheld in court during divorce proceedings. Still, prenup agreements are not for everyone. Couples who are planning on marrying and who would like a prenup will want to carefully consider what they need and speak with a lawyer to create a valid prenup that can be used during a divorce if the couple divorces at some point in the future.

The Decision to Create a Prenup

No one plans on getting a divorce, but there are people who will want to consider a prenup just in case something happens and they decide to get a divorce in the future. A prenup agreement dictates what can happen in a divorce and how assets should be divided if the couple does separate. These are usually used when one person enters the marriage with more than the other person or makes significantly more money than their partner, but prenups can be useful for just about any couple who might be worried about the future. Prenups can also be used to clarify what assets are off limits to division when a couple has children from a prior relationship.  They will want to talk together to decide if a prenup is the right decision and, if so, what the prenup should include. It’s crucial both people understand the details of the prenup before agreeing to be bound by it.

Detailed Documentation for a Prenup

Before the prenup is written, documentation is crucial. The couple should gather documentation showing who owns what prior to the marriage if the prenup is going to include any information about the division of property or other assets in the event of a divorce. The more documentation they have available, the easier it will be to prove who owned what prior to the marriage. This can help minimize potential arguments in the future as to what falls under the prenup and what might be considered a marital asset.

Decide on What Should be in the Prenup

The couple should talk about what they want to include in the prenup and what it might mean if they get divorced. If there are provisions that dictate something might happen if the couple divorces for a certain reason or after a certain amount of time, it’s important to be clear about exactly what this involves and what changes. The more detailed the prenup is, the easier it will be to show it should be upheld if the couple does end up getting a divorce.

Division of Property After Death or Divorce

Many couples decide to get a prenup because they want to control how property is divided during a divorce or after the death of one spouse. Unless stated in a document such as a prenup, a person whose spouse dies is entitled to what's called an elective share.  This means that despite what is stated in a will, a person can claim a portion of their deceased spouse's probate estate.  The amount increases with time.  A prenup can include a provision stating a person waives their right to take an elective share.  However, as with other important legal documents, the correct language needs to be included in the document.  Even spouses waive an elective share, they are still free to put in their will how they would like their assets to be divided upon death.  This is where a lawyer such as the ones at Pritt & Pritt can help. 

Note: The requirements for a will (two witnesses, other requirements) are different than a prenup.  

With a division after divorce provision, what happens to assets and who obtains the assets will be decided. This often is created so that the property obtained before the marriage is not considered a marital asset and will remain with the person after the divorce. This can include property obtained prior to the marriage or certain types of property one person might obtain during the marriage.

Spousal Support

Another common reason for a prenup is to discuss spousal support before the marriage. It is possible for spousal support to be eliminated if both partners agree to this provision. couple should discuss and have placed into prenup what they believe would be a fair amount.

Child Support and Child Custody

A couple can discuss and have placed into a prenup provisions regarding child support and child custody.  However, whether those provisions will be enforceable is, ultimately, up to the judge.  Under West Virginia law, a Court must find that a parenting arrangement is not contrary to the best interest of the child.  Also, West Virginia courts are often reluctant to deviate from the child support formula.  Child support is not considered the property of the receiving parent.  Child support here is characterized as the property of child.  While a couple can have provisions put into a prenup regarding child support and child custody, a possibility exists that the provision will not be binding. This is one reason why a severability clause, one that says an agreement is not invalidated if one part is deemed illegal or unenforceable, is often included in such agreements.

 

Other Topics to Consider

Other topics can be included in a prenup as well. Basically, the prenup can cover any topic that would need to be discussed during a divorce so both partners understand what to expect if they do decide to get a divorce. This could include information about how to handle pension plans, inheritance money, as well as other assets that would typically be divided in a divorce.

Work with a Lawyer to Create a Prenup

Couples who want to create a prenup before they get married will want legal assistance. Working with a lawyer gives them the chance to learn more about the standard provisions as well as more unique provisions that might be a good idea to include. A lawyer can explain the chances of a provision being upheld as well as what might cause the courts to ignore a provision or the entire prenup if the couple gets a divorce. The lawyer also makes sure everything is written clearly to avoid confusion in the future.

If you’re getting married soon and you’d like to consider getting a prenup, Pritt Law can help. Set up a consultation to learn more about what you need to know for a prenup or to make sure you know what you need to have to start creating a prenup. They can help you with the prenup right now and the divorce in the future if you do end up needing to get a divorce. Contact Pritt Law today so you can start creating a prenup for you and your soon-to-be-spouse so you know everything is planned for just in case something happens in the future.

Skyler Barnhart