How a Prenup Affects Your Divorce

09 Aug How a Prenup Affects Your Divorce

A prenuptial agreement, or prenup, is a contract that two parties enter into before an actual contract or marriage. It is an agreement between the two parties of what is not allowed during the union and what penalties will be implemented in the event they are enacted. In many cases, these are references to finances and infidelity, but can also be something as simple as dictating what will go to whom, in the event of a divorce. It is a document that an attorney will draft and file with the court.

How Can It Affect Your Divorce?

Having a prenuptial agreement can dictate the outcome of your divorce. If fidelity is an issue, there may be a clause that will stipulate what actions you can take. It may also mean that there will have to be a proceeding to decide whether a violation had taken place. There may also be facets of the divorce that aren’t mentioned in the prenup. A judge will have to make a ruling on these aspects of your divorce. In some cases, third party mediation is an option. Many people would rather exercise that ability, rather than go to court.

There may also be a question of the validity of the document. If the prenup was obtained through duress or fraudulently, it would be invalid. It would also be inapplicable if it were signed by someone without mental capacity, filed improperly, signed without representation present or contains ridiculous provisions. There have also been instances of a court throwing out a prenup that was unfair to one party. If any of these seem applicable, there is a chance that the prenup will have no affect on the outcome of the divorce. In many cases, this may be the request of a party to the divorce. In all of those cases, there will need to be some proof that the prenup is in question.

Things That You Cannot Include in Your Prenup

There cannot be any stipulation of personal matters. You should not include a division of household chores or where you will vacation. Non-financial or private domestic matters are not upheld in these documents, either. Also, language waiving a right to alimony, dictating child support or custody and encouraging divorce. All of these matters are ones that the presiding judge must determine. There are specific topics that you cannot include in the prenup, relative to your state. You will want to discuss them with your attorney, but here is a little information to get you started!

How Can a Prenup Affect Your Marriage?

There has been a discussion that prenups can cause problems in a union. This is mostly psychological speculation that starting off the marriage with enough doubt to draft a prenup sends a message to your partner. Or that discussing divorce so early on can set a precedent that it is always an option and there is only a certain level of commitment needed. However, opponents of those theories state that a marriage that these agreements do not affect marriages. That it would be something communication would quell.

Should I Get A Prenup?

That depends on your assets. Most people who get prenups have something that they value and think they need to protect. Getting a prenup for your baseball collection can seem silly. However, if they are valuable to you or on the general market, they might be something to consider. After all, nobody needs a prenup until It’s too late to get one. The majority of prenups protect estates, finances or property. Prenups are usually for people who want to ensure that they don’t lose anything in the event of a divorce or that they leave a marriage with the same property. However, if you decide to draft a prenup, you should think about what you will want it to say.

A prenuptial agreement cannot only benefit one individual. This is why there tends to be even communication for both sides. For example, an infidelity clause will dictate consequences for both parties. If one spouse cheats, then this is their penalty. If the other cheats, that is the penalty. It cannot be only one party that has to abide by the contract.

While having a prenup can solve a lot of divorce disputes, it will not cover everything, and there is a good chance you will still end up discussing the division of property, responsibility or children. These are matters that you can work out through mediation, to avoid courts. However, even having a mediator can be a process that seems long and painful. Discussing with your attorney will help you better understand if this is something you need or should even be concerned with. This is a great place to start!