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Tag: antenuptial agreement

What can you do if you failed to get a prenup before getting married? Is there anything I can do that’s close to a Prenup when I’m already married?

What can you do if you failed to get a prenup before getting married? Is there anything I can do that’s close to a Prenup when I’m already married? It is possible to get an agreement like a prenuptial agreement after marriage, if your spouse is willing and if the jurisdiction where you can file for divorce permits such an agreement. It’s known, fittingly, as a post-nuptial agreement. In Utah, where I practice divorce law, a postnuptial agreement is enforceable absent fraud, coercion, or material nondisclosure. Normal rules of contract construction would be applied in resolving any disagreement between a husband and wife regarding the scope and meaning of a postnuptial agreement.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/What-can-you-do-if-you-failed-to-get-a-prenup-before-getting-married-Is-there-anything-I-can-do-that-s-close-to-a-Prenup-when-I-m-already-married/answer/Eric-Johnson-311?prompt_topic_bio=1

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Do prenuptial agreements make a wedding/marriage healthier?

Do prenuptial agreements make a wedding/marriage healthier?

Make? In all cases? No.

Can prenuptial agreements make a wedding and marriage healthier? It is conceivable that some people might find planning for divorce before they have married a comfort to them so that they don’t worry so much about divorce while married because they believe they have already “addressed” that possibility in advance. And if a marriage fails that should fail, then having a prenuptial agreement in place in advance can (can but does not guarantee) help make the divorce process easier, faster, less costly, and less acrimonious.

Do prenuptial agreements generally make a wedding and marriage healthier? In my experience, no. With extremely rare exception, every marriage is going to have its rough patches, and I have found that prenuptial agreements make divorce deceptively easy to contemplate and desire when the going gets rough in marriage, even though divorce is neither necessary nor in either spouse’s (or their children’s) interest.

I have found that prenuptial agreements send the wrong message, and that message is: I don’t see marriage as a lifelong endeavor. I have so little commitment to marriage and so little faith in you and me and our impending marriage that I don’t think we’ll last, and because I feel this way, I want an exit strategy in place now. Who’d want to marry someone like that? Success is meaningless without the risk of failure. You can’t have the benefits of marriage without going all in, without risking having your heart broken. Spouses who are mutually devoted to each other will tell that a loving, supportive marriage is more than worth the effort, the pains, the disappointments, the sacrifices.

Marriage isn’t the problem. It’s marrying without being careful in one’s choice of spouse, without treating marriage as a sacred thing, and without being committed to your spouse’s and your marriage’s success.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Does-prenuptial-agreements-make-a-wedding-healthier/answer/Eric-Johnson-311?prompt_topic_bio=1

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How can I protect my assets before getting married without prenup?

How can I protect my assets before getting married without prenup?

Short answer: One option (not a very good one, frankly, but about the best there is under the circumstances as you describe them in your question) is: 1) own no major/valuable property before you are married (in other words, your spouse would probably not seek (and the court would probably not award to your spouse any part of) things like your clothes and personal effects, so you could live in a house and drive a car you lease and thus have no such “big ticket” items that could be sold and the proceeds of sale awarded to your spouse in divorce; 2) save nothing in the bank or in investments and retirement accounts, so that there is nothing like in which your spouse could try to claim an interest; and 3) ensure that you do not earn more than your spouse does, so that your spouse cannot make an easy argument for alimony.

Your real question may be this instead: How can I prevent losing too much (being treated unfairly) financially in divorce? If that is your question, it is a very good and very common one.

After all, most reasonable people would agree that what a couple acquires together during marriage is considered “their” property, “our” property, instead of “there’s yours and there’s mine”.

For example:

  • A couple marries and buys a house together in which they live for years. Sure, it may have been that one spouse worked full time while the other stayed home to take care of the kids and the house, but they’re a team, partners (in both a legal sense and a practical sense).
  • Saving up for retirement. It’s common for one spouse to be better able to pursue a career and advance in it (thus making more money for retirement) when the other spouse stays home with the children (at least while they are quite young) and keeps house. Both spouses understand that one hand washes the other.

The decision to purchase the house and the decision to have one spouse be the primary breadwinner and the other the children’s primary caretaker was made together, for mutual benefit. The spouse with the full-time job knew in advance that he/she would be sharing the house and retirement funds with his/her spouse and worked for the money needed to fund these things. It’s understood that these things are marital property that would be divided equally in the event of divorce. It makes sense.

But there are other issues that aren’t so clear cut. Many people—mostly husbands, but a growing number of wives—have this sense that:

  • “divorce should not result in my being financially exploited”;
  • “divorce should not result in being robbed of what was mine before marriage and what I acquired for myself during marriage”;
  • “I shouldn’t have to continue to support a spouse financially if I’ve done nothing to make divorce necessary; if my spouse wants out of the marriage and files for divorce, then he/she should do so with the understanding and expectation that with the end of the marriage comes the end of any and all of my obligations to support my spouse due to the fact that he/she is no longer my spouse”;
  • spouses who:
    • don’t carry their fair share of the weight during the marriage, who don’t do their best to contribute, and/or become financially dependent upon the other spouse as a result of being lazy (as opposed to spouses who are or become, due to disabilities beyond their control, financially dependent on the other spouse); and/or
    • abuse the other spouse and/or children, commit adultery, or waste marital resources (e.,, refuse to uphold their marital responsibilities with impunity)

are moochers in divorce when they demand that the people to whom they are no longer married nevertheless keep supporting them financially. There is something inherently unfair in that concept.

In response to these questions and concerns the best answers for me personally are:

  • If I am truly worried that my marriage could end in divorce to a gold digger, the solution does not lie in trying to figure out a way to protect my assets but in not marrying the suspected gold digger.
  • I did not marry to keep tabs on how much I have to lose in divorce. Yes, there are risks in trusting my spouse with my welfare (both physical and emotional), but the opportunity to enjoy a happy marriage is worth the risk to the right person. Now please understand: I get that sometimes you can do everything right and marry someone who was great but who later changed and turned on you. That’s sad, but not enough of a reason to avoid marriage, in my opinion. Well-rounded married people are generally much happier than well-rounded single people. Don’t deny yourself the joys and blessings of marriage out of the fear of divorce. There is no meaning to success without the risk of and the fight against failure.
  • There is no more reliable and cost-effective way to protect your assets in divorce than with a well-drafted prenuptial agreement. Warning: even the most well-drafted prenuptial agreements are not iron-clad, but they are better than nothing (far better) if you are concerned about protecting yourself from being raped and pillaged financially in divorce.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/How-can-I-protect-my-assets-before-getting-married-without-prenup/answer/Eric-Johnson-311

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Can a prenup dictate that a reflection time is required before divorce?

In Utah, where I practice divorce law, the law governing what content is permitted in prenuptial agreements is fairly simple and thus fairly broad:

30-8-4. Content.

(1) Parties to a premarital agreement may contract with respect to:

(a) the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;

(b) 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;

(c) the disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;

(d) the modification or elimination of spousal support;

(e) the ownership rights in and disposition of the death benefit from a life insurance policy;

(f) the choice of law governing the construction of the agreement, except that a court of competent jurisdiction may apply the law of the legal domicile of either party, if it is fair and equitable; and

(g) any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

(2) The right of a child to support, health and medical provider expenses, medical insurance, and child care coverage may not be affected by a premarital agreement.

So could a prenuptial agreement contain a provision that requires a reasonable “reflection period” or “cooling off period” before either spouse could file a complaint for divorce? I would think that it almost certainly could without such a provision constituting a prohibited “violation of public policy”.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Can-a-prenup-dictate-that-a-reflection-time-is-required-before-divorce/answer/Eric-Johnson-311

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