Tuesday, December 4, 2007

Prenuptial Agreements - what's new for today?

I thought for today I would put all the new articles on prenuptial and cohabitation agreements into one article.

For those wanting a general overview about prenuptial agreements, you should read Divorce and Premarital Agreements: What are Premarital Agreements?. I have one disagreement with the article. The article says you should see a lawyer where I say not having a lawyer review the prenuptial agreement (or the cohabitation agreement) puts you at risk.

What to put in a cohabitation agreement provides a general overview for cohabitation agreements.

VA Family Law Blog puts forward the argument in Not Hollywood: the truth about Prenuptial Agreements that prenuptial agreements are a communications tool that will help a marriage:

Others tell me prenups just doom a marriage to fail. How can a marriage succeed if you start off assuming you will get divorced, they say. While prenups do set up the financial rules to be used if a marriage fails, they also let couples craft a financial plan which will help their marriage succeed. You doom your marriage when you do not talk in advance about financial details and expectations. I encourage my clients to make full financial disclosures as part of the prenup process. Often each side only has a sketchy idea about the other’s situation until we tackle the disclosure. Communication, not cluelessness, is a good marriage building block.
I can say that my experiences with relationships is that as soon as we stopped talking to and with one another, they came to an end. Which explains why I like this particular argument for prenuptial agreements. I will go further and say that the same idea applies to cohabitation agreements.

For an article mixing prenuptial and cohabitation agreements, I suggest taking a look at this article from Divorce Lawyer Blog Premarital and Living Together Agreements - Do You Need One?:
"First, let's look at the difference between the two agreements. Premarital agreements are created between two individuals who are planning to get married in the near future. Living together agreements, also called property agreements, are created between two individuals who do not plan to marry immediately or perhaps at all, but who may accumulate property together. This can include same-sex couples and long-term roommate situations, as well as couples who choose to live together for an extended period."

The Uniform Pre-Marital Agreement Act is a federal law that provides legal guidelines for premarital agreements. Agreements are usually enforceable in court unless it can be proven that one party was forced to sign the agreement against his or her will or that the agreement is written in such a way as to promote divorce, such as providing an unusually large settlement.
I do need to quibble a bit here - the UPAA - is not a federal law but a state law.

Jeffrey Lalloway of California Divorce and Family Law Blog picks up an article which I did not see in Prenuptial agreements prevent much pain. Practical advice here that ought to be paid attention:
It's a process that should begin long before the wedding invitations are mailed.

First, working out an equitable agreement takes time.

Second, and most important, a rushed prenup might not stand up in court because one spouse was under pressure. (Ask director Stephen Spielberg. He was ordered to pay ex-wife Amy Irving $100 million when a judge ruled that their prenup, scrawled on a cocktail napkin, was invalid because Irving didn't have legal representation.) "A prenup isn't cumbersome or expensive to set up," Charny says. "But it does take time because everything must be carefully evaluated."

Full disclosure of all assets is essential. If one spouse tries to hide money -- or debts -- from the other, it could negate the deal.
Which partially explains, why I wrote above that making optional review by an attorney was not a good idea.

I do not think that I mentioned before that Indiana's prenuptial statute is online. Actually, it is Indiana's version of the uniform premarital agreement act and is found at IC 31-11-3.

For my other articles on prenuptial, post-nuptial, or cohabitation agreements, you need only click on the links below next to "Label".

If you live in Indiana and need an agreement written or reviewed, please contact me.

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