Prenuptial Agreements, Marriage Contracts, and More

Image of bride and groom signing a prenuptial agreement following this pre-wedding legal hand bookOnce the question has been popped, thoughts of “happily ever after” may begin to enter one’s mind. You may even imagine a beautiful wedding surrounded by family and friends. Regardless of culture, religion, or socio-economic status, marriage is a celebration of the love two people share. But amid the twinkling of wedding bells it is important to remember that marriage is more than a change in relationship status – and a wedding ceremony is more than a celebration of love. Marriage is a legal contract that changes the financial and legal interests of each spouse literally overnight.

Most people would avoid entering a contract that could have a significant impact on their daily lives without a full understanding of the implications – such as signing a mortgage or leasing an apartment. Surprisingly, many people still tie the knot without appreciating the legal impact. Regardless of a successful or failed marriage, understanding the legal implications is essential.

If you are married, or have ever been married, did you meet with a family law attorney to learn how your state’s laws might apply to your marriage? Did you even know you needed to? Did you meet with a tax attorney or accountant to discuss the tax implications of filing “married” after the date of the wedding? Did you have a conversation with anyone on what happens if the marriage fails and divorce results?

I can hear you now. “But I didn’t sign a ‘marriage contract’ on my wedding day!?” you may say. Well, in the eyes of the law, you did. The act of getting a marriage license and performing a wedding ceremony, whatever that may look like to you, is the process that creates a marriage contract.

Once married, legally speaking, your rights have changed effective immediately. For example: in North Carolina, when you buy property after the date of the wedding, using the money you have saved, it will be assumed by the law that you and your spouse are purchasing the property together and in a “tenancy by the entireties.” If you’re thinking, “Entire-what??” right now… Well, these are all questions an experienced attorney can help you answer.

Of greater concern, at least in the mind of this family law attorney, is the lack of understanding people may have about how divorce works in the event it occurs. While no one wants to think about how a marriage will end before it even begins, it is important that each person understands what can happen to them, their cash-flow, any assets and debts, and even the children should a divorce ensue.

So, before the wedding bells chime, here is a legal to-do list before the wedding day:

  1. Talk with a Family Law Attorney
    To understand the legal implications of marriage, the first step should be speaking with a family law attorney. In a society that loves a good party (and there is no party like a wedding party), it is easy to focus on the “fun” parts. While talking with an attorney can seem intimidating (yes, we see you avoiding us in social settings), it is also empowering. An experienced attorney may be able to help you and your future family avoid legal trouble altogether. Now is the time to both celebrate the love you share and to enter the marriage contract fully informed and ready to conquer life together. Although it may initially feel like an awkward conversation, there is a good chance both of you will feel better knowing that everything is on the table and everyone involved is on the same page.
  2. Talk with other Family-Related experts
    An experienced attorney may not be the only expert you want to consult with. Consider these options:

     

    1. Sit down with a financial advisor before you combine finances.
      This is a great opportunity to have open and transparent conversations about you and your spouse’s financial reality and goals. Rarely do two people agree to save or spend the same amount and this gives both of you the chance to have a frank discussion and set expectations. Of the hundreds of divorce cases I have seen, financial conflict and hardship tend to be one of the leading issues. More often than not, there tends to be a “saver” and a “spender” in every couple. Other times, one spouse gets the couple into significant financial debt. Whether that debt is accrued through gambling, or from living outside of the family’s budget, the best time to create your first financial plan together is before the wedding day. After the wedding day, consider keeping up regular financial meetings together and with an advisor. This will help keep you on the right track now and forever.
    2. Talk with a marriage therapist.
      Talking with a therapist, much like talking with an attorney, does not mean a relationship is in trouble. Quite the contrary, it can be a way to strengthen and grow lifelong bonds. A therapist can ensure that both of you are mentally and emotionally prepared before the wedding day. Additionally, therapists provide invaluable advice and resources on how to handle the significant life changes that both of you are about to go through. Remember conflict is inevitable in any relationship. A good therapist can help assist you in finding healthy ways to handle whatever obstacles that come your way.
  3. Decide whether you need a Prenuptial Agreement.
    Have you had “the talk” with your significant other about whether a prenuptial agreement might work for you?

     

    1. After you leave your family law attorney’s office, you may feel overwhelmed.
      The law can be confusing, marriage and divorce can get messy, and all you wanted to do was get married and live happily ever after! You may think, “Do I really need a prenuptial agreement?” Every time you pay your car insurance, you are hopeful that you will never get into an accident. Every year when you revisit your medical insurance coverage, you are hopeful that you won’t be diagnosed with a life-threatening condition. Is a prenuptial agreement that different? Think of it as an insurance policy built with love. If you don’t have a prenup in place and you get divorced, the laws of your state or jurisdiction will apply. Is that a risk you are willing to take? Do you know where you are going to live and what the laws of that state will be at the time? Would you drive your car without insurance? Some states don’t even allow it. A prenuptial agreement allows both parties to plan ahead for the worst from a place of love and understanding.
    2. If you want the laws of your state to apply, then great, step 1 has you covered in ensuring that you know how the law would apply should a divorce result.
      However, if you and your spouse (and not a Court) want to be in charge of that decision and define what happens, then a Prenuptial Agreement can do that for you. It may determine how assets and debts are divided (even assets you have not yet acquired), whether spousal support will be established, and other creative ways to safeguard a resolution. You may be surprised what you can include in your prenuptial agreement.
    3. If you are thinking about a Prenuptial Agreement, keep this in mind:
      1. Divorce laws are different in every state.
        In the same vein as laws about marriage and divorce, laws governing prenuptial agreements are also different in every state. Also, don’t forget to discuss jurisdictional matters with your family law attorney to ensure your agreement’s enforceability.
      2. Get a clear picture of each of your asset and debt situations prior to the date of marriage.
        A financial planner or financial advisor can assist you. This includes any deferred compensation or any inheritances that you may receive in the future.
      3. Discuss the income-earning abilities and employment opportunities between you and your future spouse.
        This will likely change over time since many people change careers over their lifetimes. Unfortunately, some career choices do not necessarily lead to high pay checks. However, if the two of you recognize the possibility that one person will become the primary income-earner, then you can discuss what happens in the event of a separation and divorce to ensure each of your financial needs will be met.
      4. Determine if you want to include unique scenarios.
        For example: in North Carolina, you cannot sue a cheating spouse for monetary damages in the event of an extramarital affair. But, should Justin Timberlake cheat on his wife Jessica Biel, he will owe her a hefty $500,000 due to the infidelity clause in their prenuptial agreement.1

If I could give one piece of unsolicited advice to every engaged couple I meet, it is this: have the tough talks now. Do the work now so that your wedding and marriage can focus on the love and fun the two of you share, and the wedding bells tinkling in the background.

1 Julia Naftulin, Celebrity Prenups You have to see to Believe, https://www.theknot.com/content/crazy-celebrity-prenuptial-agreements.