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A Primer on Prenups

by | Nov 25, 2015 | Uncategorized


While defining love can be complex and is unique to each couple, most can agree that a prenuptial agreement, otherwise known as a prenup, isn’t the most romantic gesture. Prenups allow couples to define the terms of their marriage before it starts and decide what should happen in case of a divorce or separation.

Questions such as property and monetary distributions are usually addressed in prenups and the terms that are agreed on are customarily approved by our courts, except when they are signed by an unwilling party, signed before one person could meet with a lawyer, or where a full and truthful disclosure of financial earnings has not been made. But by working through those messy, potentially uncomfortable subjects in advance, divorce, should it happen, may be a lot smoother and less expensive.

Under the Uniform Premarital Agreement Act (UPAA), prenups can provide for the following marital rights:

1) The rights and obligations of each of the parties in any of the property of either or both of them, whenever and wherever it is acquired or located.

2) The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property.

3) The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event.

4) The modification or elimination of spousal or one partner in a civil union couple support

5) The making of a will, trust, or other arrangement to carry out the provisions of the agreement.

6) The ownership rights in and disposition of the death benefit from a life insurance policy.

7) The choice of law governing the construction of the agreement.

8) Any other matter, including their personal rights and obligations, not in violation of “public policy.”

Child support payments and custody arrangements cannot be included in a prenup – only courts can decide what’s in the best interest of a child.

Once each member of the couple have met with their lawyers, or freely, knowingly and voluntarily waived that right, disclosed all financial information (including all earnings, investments, and debts), and decided how they’d like to distribute their marital assets, the prenup can be signed. It must be in writing and becomes effective immediately upon marriage. After the marriage, a prenup can be amended or revoked only if there is a separate signed written agreement stating their intentions.

Though talking about divorce on the eve of marriage is uncomfortable, to say the least, many couples benefit from prenups. It’s especially important for mutually or unevenly wealthy soon-to-be spouses to take an objective look at financial matters before “taking the plunge.” Loree Varella, Rutgers School of Law Newark candidate for a JD degree in May 2016 collaborated on this blog. She is Associate Editor of the Rutgers Computer and Technology Law Journal and Managing Research Editor of that publication.

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