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Awhat is A PREMARITAL AGREEMENT?

new year is here! For many of us, the new year will bring adventure, big milestones, and possibly, a new last name. An important “to-do” on your wedding planning list is a premarital agreement — a precautionary step to prepare for the best outcome just in case your fairytale doesn’t end with a “happily ever after.”

Have you ever heard the phrase “pre-nup?” In North Dakota, “prenups” are called premarital agreements. You may be asking yourself, “Why would I want to plan for the end of what I hope will last forever?”

The answer is simple and can be summed up in three words: protection, security and investment.

A premarital agreement is a contract that you and your fiancé enter into and sign before you become husband and wife. This agreement will likely outline issues surrounding division of assets and debts, spousal support and much more. A premarital agreement is absolutely critical when you are entering a second marriage, anticipate receipt of inheritance or are involved in a family business with anticipated ownership someday.

what can you agree to BEFORE YOU SAY “I DO?”

The main consideration in a premarital agreement is identifying separate and marital property. Separate property is property that belongs to one spouse prior to the marriage. Marital property is property that is earned or acquired during the marriage. While marital property will be divided between spouses in a divorce, separate property will not. Absent a premarital agreement, it is not that simple. In North Dakota, almost all property is subject to division upon divorce. The phrase “what’s mine is yours” may ring true if you don’t have the protection and security of a premarital agreement. A premarital agreement will allow you to confidently say to your spouse, “I love you, but what’s mine will remain mine.”

Parties can also agree to spousal support in a premarital agreement. Spousal support is when one party gives financial support to the other after a divorce. This is an important consideration when contemplating marriage, particularly when one spouse chooses to stay home and take care of the children or makes significantly less income than the other.

It is important to note that child related issues, such as child support or child custody issues, are non-negotiable. Any child related provisions in a premarital agreement will be unenforceable and the court will replace any such provisions with a parenting plan in the best interest of the child(ren).

how can you MAKE SURE YOUR PREMARITAL AGREEMENT IS ENFORCEABLE?

Take your time. A close timeline between signing on the dotted line and walking down the aisle tends to show that at least one party was pressured into signing the agreement without fully and fairly considering its contents. This may lead a court to decide the agreement is not enforceable, and all the work and preparation you have done to protect yourself was all for nothing. Give yourself ample time to get it right.

Communicate and disclose all of your assets fully and fairly. In order to have a valid agreement, each party needs to know exactly what he or she is agreeing to. At minimum, you and your future spouse should provide a detailed list that provides each party’s income, assets, and debts. Now is the time to lay it all out there; after all, you are about to be sharing almost everything.

Be separately represented. Each party to a premarital agreement has a right to their own attorney. This right can be waived; however, this is likely not in either party’s best interest. Now, you may be seeing dollar signs at the thought of hiring two attorneys to draft and review an agreement. Trust us, with a premarital agreement, you will greatly reduce your legal fees should you pursue a “d-word” (divorce) in the future.

Perhaps most difficult, put your emotions aside. A premarital agreement is much like a business transaction. Remember to be smart, be conscious about your future and not to let romance or pressure cloud your judgment. Add a premarital agreement to your wedding “to-do” list, your future self will thank you.

Vogel Law Firm’s family law attorneys provide a wide range of services to clients on domestic matters, including complex divorce and custody issues. They are skilled trial lawyers in both North Dakota and Minnesota courts, and handle major cases, such as those involving business evaluations and other complex issues.

Our areas of service include:

Premarital and Post Marital Agreements /

Child

Paternity / Name Changes / Grandparents’ Rights

Guardianship and Conservatorship

and Separation

Attorneys

ARIANA MEYERS (left) and MEGAN GORDON are members of the Family Law practice group at Vogel Law Firm. They provide a wide range of services to clients in family law and other civil matters. For more information, visit vogellaw.com.