A prenuptial or postnuptial agreement is a marital contract between two spouses, which can determine several property and financial rights during a marriage and in case of divorce. Whether you’d like to create a prenuptial agreement or ensure it is followed during your divorce, a Midwest fathers’ rights attorney can help you do so.
A prenuptial or postnuptial agreement may cover issues such as:
- Which separate assets will be combined into marital assets and which will be kept separately
- Each spouse’s rights, responsibilities, and abilities regarding assets and debts
- How property is handled if one spouse dies
- The division of marital assets in case of divorce
- How separate and marital debts will be handled
- If death benefits and life insurance will be divided
- If spousal maintenance will be awarded or waived
- Inheritance rights of children from prior relationships
Many parents in the Midwest may be uncertain how the decisions made in a prenuptial agreement can impact their children.
Prenuptial Agreements and Inheritance Rights
A prenuptial agreement can affect the property that children receive. In a divorce, marital assets are divided between spouses. If spouses can’t reach an agreement on how assets are divided, the court will divide the assets for them. In most Midwest states, assets are divided according to equitable distribution laws.
If one spouse wishes to leave certain assets to any of their children, there is a chance that they lose those assets in the division of property. However, with a prenuptial agreement, spouses can decide inheritance rights for their children and children from prior relationships and designate certain asset beneficiaries. If the spouses divorce, or if one spouse dies, those assets can remain the inheritance of their children.
A prenuptial agreement can also keep certain property within a family, further protecting assets for children.
How Asset Division Impacts Children
One of the main purposes of a prenuptial or postnuptial agreement is to determine the division of marital assets if spouses divorce. By maintaining control over this division, spouses can find a fair division of property that ensures each spouse keeps the assets that they would want to keep in their family and pass to children rather than the asset being lost in a divorce.
Rather than designating a specific heir for the asset, this simply allows each spouse to end up with the marital assets that they want and that could benefit their children in the future.
A prenuptial agreement also protects the inheritance of children by providing debt protection. One spouse may be entering into a marriage with significant debt. A prenuptial agreement can determine how that debt is handled and who is responsible for it. Without taking these issues into account, creditors may be able to claim marital assets for that debt and limit the property that children inherit.
Prenuptial Agreements and Spousal Maintenance
Prenuptial agreements in some states can also determine if either party receives spousal maintenance in a divorce. It can determine how much and how long. In some cases, spouses can waive their right to spousal support.
A spouse’s financial obligations, including spousal support, are taken into account when determining child support payments. If spouses decide to set or waive spousal maintenance, this can affect how the court determines child support.
Child Custody, Child Support, and Prenuptial Agreements
Martial agreements can affect children in many ways, but they usually cannot include provisions for child custody or child support. This is because those decisions are governed by state law and are made in the child’s interest in specific circumstances. They cannot be made before those circumstances are known.
In some states, a marital agreement can set a minimum amount of child support. However, it cannot set a limit on child support. Most states do not allow any provisions for support and will calculate support based on the ability of a parent to pay, the needs of the child, and the custody arrangement.
Child custody is also determined based on the child’s interest and cannot be outlined in a prenuptial agreement. The agreement can also not dictate personal preferences or requirements for how children are raised.
Q: Do Prenups Make Divorce Easier?
A: A prenuptial agreement can make a divorce go more smoothly and limit stress if it is enforceable. Without a prenuptial agreement, a divorcing couple will have to negotiate a separation agreement for property division and spousal maintenance or take those issues to divorce court if they can’t reach an agreement.
The prenuptial agreement can set these terms before or during a couple’s marriage, making the divorce process easier and faster. Spouses and fiancées are more likely to be amicable during prenuptial agreement negotiations than divorce negotiations.
Q: What Are the Disadvantages of a Prenuptial Agreement?
A: If a prenuptial agreement is unfair and protects one spouse’s separate assets without protecting the other spouse’s assets, it can leave one spouse with substantial financial instability. In most cases, the court will see this issue and refuse to enforce the prenuptial agreement on the grounds of it being unconscionable. If the court does not do this, however, both spouses will have to adhere to the terms of the agreement.
A prenuptial agreement can also be an issue if it is unenforceable for any reason. Spouses spent time and money creating the agreement but will have to negotiate a separation agreement from scratch if the prenuptial agreement is unenforceable.
Q: How Are Assets Divided With a Prenup?
A: One of the benefits to a prenuptial agreement is that assets can be divided however spouses want to divide them, as long as the terms are not unfair to one spouse, illegal, or otherwise unconscionable.
When spouses do not make a marital agreement, they must either reach a compromise in a separation agreement or their assets will be divided according to the state’s property division laws. Spouses can decide how their marital assets are divided between them in a prenuptial agreement, and the court will enforce it if it is reasonable.
Q: How Does a Prenup Affect the Children?
A: A prenuptial agreement cannot include terms dictating child support or child custody and visitation. This is because court orders involving children must be made in the child’s interests, which cannot be determined in advance.
However, a prenuptial agreement can affect children in other ways. A prenuptial agreement can outline the inheritance rights of children from the marriage or from a prior marriage, ensuring that certain marital assets are set aside for children in case of a divorce. A prenuptial agreement can also include debt protection so that marital assets are protected from creditor claims, protecting those assets for children.
Contact Stange Law Firm
Contact the experienced attorneys at Stange Law Firm to see how we can help you negotiate a prenuptial agreement.