Q&A Topic: Prenuptial, Mid-Nuptial, and Post-Nuptial Agreements
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Q: Who needs a premarital agreement?
A: Every marriage ends on one of the “D” words: Death or Divorce. Pennsylvania divorce laws and the laws governing probate and estates on death dictate the consequences of the end of the marriage. What the law provides may be perfectly acceptable to a couple about to marry. A frank conversation with a family lawyer is important to figure out if a modification of the provisions in the law are warranted. At different stages of life there are different considerations of what can happen upon death or divorce. A couple starting out on equal footing may not want or need a prenupt. A discussion should be had about the different roles they are about to assume, and the consequences of those roles. If the particular circumstances of the couple demonstrate that the results on death or divorce do not meet their needs, a prenuptial agreement can specifically set forth such consequences to meet the needs of the couple. Basically, if one party has a business interest or substantial holdings at the time of marriage, or if there is an anticipation of inheritance, or gifts from parents, a premarital agreement may be warranted.
If an inheritance or gifts are anticipated, without a premarital agreement, the growth on the inheritance during the marriage would be marital property to be divided between the couple if they divorce. If the marriage ends by death, the surviving spouse could seek to set aside a valid Will if that Will did not leave the surviving spouse more than the Estate Code requires. What the law provides may simply not be acceptable. A premarital agreement can set “rules” for how inheritance received during marriage will be distributed on death or divorce.
Another good reason to enter into a prenuptial agreement would be if one spouse owns a business or will be acquiring an interest in the family business. Business owners don’t want to open company books to a forensic accountant working for the other spouse. The process is immensely disruptive and time-consuming and it can cost tens of thousands of dollars. Furthermore, the value of the business determined by the forensic valuator is only a good faith opinion, not the value established by the marketplace. If one divorcing spouse thinks the value is high or low, there will be a battle of experts at great expense, making a premarital agreement necessary.
For young couples, it’s important to keep in mind that the marriage partnership needs to grow. They may not need to waive all rights and obligations pertaining to a marriage. The prenuptial agreement could be enforced after 40 years of marriage. The terms have to take into consideration the many things that could happen over a lifetime. A waiver of alimony may not be warranted because the future is not ours to see. However, it could be very appropriate to limit alimony to earned income and not the inheritance or business assets.
Q: What about agreements for the couple entering into a second marriage? Do they need a prenuptial agreement?
A: Prenuptial agreements for second marriages are very important, especially if there are children. Consideration must be given to the needs of the children but that must be balanced by the needs of the new spouse. With proper planning, both the new spouse and the prior children can be protected. In second marriages, there are often significant assets. When marriage ends, either on death or divorce, those premarital separate assets may need protection. Alimony may need to be waived or limited. In late-life marriages, consideration must be given to long-term care needs of a new spouse. Some couples getting married late in life, when health issues are looming, need to consider the consequences and explore ways to circumvent unwanted results. As a spouse, there may be significant obligations to pay for long-term nursing care. It’s a healthy discussion to have when there is still time to control things.
Q: What happens if a couple already is married and now they want to protect business interests or inheritances?
A: I have seen many clients who want to stay married but define certain things when the marriage ends on death or divorce. I call post-nuptial agreements for these couples in the middle of the marriage, “mid-nupts”.
Mid-nupts can address an interest in a family business that one spouse is about to acquire so that the business interest is not available for distribution on death or divorce. The post-nuptial agreement can remove inherited assets, gifts, or trust distributions from the other spouse.
Q: What are some of the things couples can legally address in a mid-nupt?
A: Affairs happen and spouses inevitably find out about infidelity, especially in this time of text messages which is the primary way that an extra-marital affair is exposed. Often times, because of the family situation (perhaps young children or an upcoming family wedding) a divorce is not desirable or the timing is just not right. The wandering spouse may show genuine contrition but while there may be hope that the marriage can sustain the infidelity, there is concern that a divorce may be the only solution. In this situation, couples have sought a post-nuptial agreement defining how marital property would be divided if the marriage doesn’t survive. They could agree that the spouse in the extra-marital relationship will take a smaller percentage of the assets. Or they could decide who is going to keep the primary residence or the beach house. They can decide on the amount and duration of alimony. Anything is possible if both parties agree and there is full disclosure of all the assets and liabilities.
Some contemplate divorce and wish to negotiate the terms of their separation while they are still able to reason with and act civilly toward each other. Negotiating the terms of the divorce while the spouses are still relatively amicable can save time and legal fees.
A couple who hasn’t committed to divorce may benefit from the "process" of drafting a post-nuptial agreement, including analyzing the assets and liabilities, and dealing with issues like spending habits and financial insecurities. A couple may be able to move past the marital financial difficulties in ways that marriage counseling may not be able to address.
A couple advancing in years, in a second, but long and loving, marriage, wants to address distribution of their assets to their children and step-children. Even if no divorce is anticipated, there are some rights at death that cannot be waived unless waived in a valid, post-nuptial agreement. This mid-nupt would be drafted in conjunction with a Will and perhaps a trust.
Q: Are prenuptial agreements and post-nuptial agreements enforceable?
A: These agreements are written to define rights and obligations between people in a confidential relationship. They are enforceable as long as they are carefully and clearly drafted with full and fair disclosure of all assets and liabilities. Provisions need to be specific yet adaptable enough to apply to the changing dynamics and circumstances of the marriage over many years.
I review the different possible turns a marriage can take to make sure the agreement adequately addresses the expected and unexpected. Most importantly, I want to be a catalyst to encourage frank conversations about difficult topics. These discussions can strengthen a marriage and avoid problems later.
Vetrano|Vetrano & Feinman LLC
630 Freedom Business Center Drive, Suite 215
King of Prussia, PA 19406