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October 23, 2016

Determining Whether a Prenuptial Agreement is Right for You

Greenville South Carolina family law attorney

You have decided to take the proverbial “plunge” and are planning to get married. You are in love with your soon-to-be-spouse and you are confident they love you. But you also read about the nearly 50 percent divorce rate in the United States (though it is not actually 50 percent) and you want to ensure both you and your spouse go into the marriage with eyes open understanding what assets, liabilities, and other issues would be at issue if the marriage came to an end. This is where a prenuptial agreement can be a benefit. Though, such an agreement is not for every couple. Below are some advantages and disadvantages of entering into a prenuptial agreement.

Advantages of Entering Into a Prenuptial Agreement

One of the leading causes of divorce is financial difficulty. A prenuptial agreement requires you to talk to your spouse about finances including marital assets and liabilities. It can be an awkward conversation to have, but it may be worth it to get on the same page about your financial future.  Be upfront and honest with your spouse. Acknowledge that it is a difficult subject, but that these issues have to be discussed.

Another big advantage to entering into a prenuptial agreement is the reduced risk of going through a protracted court proceeding and spending thousands of dollars in legal costs. Discussing with your spouse what you would do in this scenario allows you to mitigate potential conflicts.

Other advantages of entering into a prenuptial agreement include:

  • Assigning debt (e.g., student loans, credit cards, car loans, mortgages, etc.) to the appropriate spouse so you can avoid sharing the debt liability;
  • Determining what constitutes separate property and marital property; and
  • Allowing you and your spouse to draft provisions specific to your relationship (e.g., assigning who gets your wine collection, your pet dog, and/or your X-Box game console).

Important Topics to Discuss with Your Spouse Concerning What Will Be Included in the Prenup

You and your spouse should write down all of the asset and liability issues that you both want to be included in the prenuptial agreement. Below are some important topics you should strongly consider including:

  • Retirement benefits;
  • Life insurance benefits;
  • Income, deductions, and claims for filing your tax returns;
  • Household bills;
  • Division of property;
  • Joint bank accounts;
  • Management of credit card spending and payments;
  • Savings contributions;
  • Assigning liabilities such as credit card debt and student loan debt; and
  • Agreeing to arbitration or mediation to resolve any unanticipated disputes.

Disadvantages to a Prenuptial Agreement

Unfortunately, many people have a visceral reaction when the word “prenup” enters into a conversation. The misconception is that if you are thinking of a prenuptial agreement, it means you are not really in love with your spouse and you are planning your exit strategy.  If you encounter this form of immediate backlash, it may mean a prenuptial agreement is not for you.

Another disadvantage to a prenup is that it poses questions you may not have an answer to yet. For

example, if you are in the process of applying for mortgages, but have not yet signed on the dotted line, it makes little sense to draft an agreement where a home mortgage is discussed, but the mortgage may not materialize.

Another disadvantage is that you and your spouse might include provisions in the prenup that are not legally enforceable. For example, a prenup cannot include provisions concerning child support or child custody. Only a South Carolina Court has the authority to enter an order concerning child support and custody. If you present a prenup to a court with child custody or support provisions, the court would likely expunge that provision and it may cause the court to call the entire agreement into question.

As a matter of fact, a court has the discretion to exclude any provision it finds to be unfair or not in the interest of justice for the parties involved. For example, provisions that mandate a spouse maintain a certain body weight, where to spend the holidays, or what schools your children must attend are typically ignored by a court. This is because prenuptial agreements are meant to address financial issues, not day-to-day marital issues.

Importance of Legal Counsel When Drafting a Prenup

As you can see, properly drafting a prenuptial agreement is extremely important. You do not want to devote hours of time and emotional distress to broaching the issue of a prenup, enter into the agreement, then later discover that the agreement is void. This is why hiring an experienced Greenville prenuptial agreement attorney is so important. In fact, both you and your spouse should have separate counsel review the agreement to ensure it is valid and enforceable. Separate counsel is advised since a common defense to prenups is that one spouse lacked the legal advice necessary to recognize an inequitable or improper provision in the agreement.

Assessing Whether It Makes Sense to Enter Into the Agreement

Once the provisions of the agreement have been drafted and reviewed by an attorney, you should assess whether it makes sense for you to move forward and sign the agreement. It may be helpful to use a scale of zero to five; zero indicating you are extremely uncomfortable signing and five indicating you are fully on board. If you rate yourself at a three or higher, you should probably proceed. If you are at a two or lower, you should re-assess the agreement. Keep in mind, even if you rated yourself at a four or five, you should talk to your spouse to see where they stand. You may be ready to move forward, but they may have legitimate concerns. Discuss those concerns. Remember, communication is key.

Speak to an Experienced Greenville Family Law Attorney Today

Entering into a prenuptial agreement is a serious matter and seeking the counsel of an experienced Greenville prenup lawyer is strongly recommended. You want to ensure your agreement is properly drafted and legally enforceable. The office of Lauren Taylor Law is here to help. Contact Lauren Taylor today to schedule a free, confidential and comprehensive consultation.