By Michelle A. Malone, Esq. and Judith Ellenthal, Esq.
If you answer yes to any of the following questions, then you should consider entering into a preNUPtIal agreement with your spouse-to-be.
Do you or your spouse-to-be have children from a previous relationship?
If either party to a marriage has children from a previous relationship, he or she probably has the legal obligation to contribute to the children’s support, based on a separation agreement or Court order. In that circumstance, you and your spouse-to-be should address that obligation in a prenuptial agreement. Even if you are not legally obligated to provide for children from a previous relationship during your life or in the event of your death, you might want to provide for them if your future marriage ends in death or divorce.
Are you planning on starting a family?
Although a premarital agreement can effectively address many different issues, its utility is limited when it comes to future children you may have with your spouse-to-be. When issues of child support, care, custody and visitation, or any other provision concerning future children are involved, they are all subject to judicial review and modification in the future, since the Courts will seek to protect the best interest of minor children at that future time.
Do you wish to address future alimony obligations?
Alimony can be addressed in a prenuptial agreement. Premarital assets that produce income may be included in an alimony calculation, unless they are excluded by the terms of a premarital agreement. Also, any income derived from inheritances or gifts received after marriage may also be considered for an alimony calculation, unless addressed in a premarital agreement.
Do you own a business?
If you have an ownership interest in a business, whether on your own, or with partners or family members, you might want to exclude the business from any future property division in the event of a divorce. This can be accomplished with a premarital agreement.
Do you have assets acquired before marriage?
If you have assets acquired prior to your marriage in the form of retirement funds, investments, real or personal property, stock options, employee benefits, or if you are named as a beneficiary in a trust, how all or some of these assets will be allocated may be addressed in a premarital agreement.
Do you anticipate an inheritance or gifts?
If you anticipate an inheritance, do you want it to be included in your assets in the event of a divorce or death? If you receive gifts from an individual or a trust on a regular basis, you might want to exclude them from any property division that results from a divorce. This can be addressed in a premarital agreement.
If you have questions or concerns about whether a prenuptial agreement may be right for you, contact Cacace, Tusch & Santagata.