A pre-nuptial agreement is a good idea for all couples as they prepare to start their lives together. A pre-nuptial agreement will set the rules for what happens if the marriage is not "until death do us part."
When the attorney drafts a pre-nuptial agreement, we make certain assumptions. If one of the spouses owns property such as a vacation home or a rental property, they may put in the pre-nuptial agreement that the property will remain with the original owner. A pre-nuptial agreement may also discuss ownership of a business or the amount one spouse will pay the other in support in the event the marriage comes to an end.
Just like a Last Will or a Health Care Proxy, the information in a pre-nuptial agreement can be reviewed or amended as circumstances change. Discussing details related to the possible end of a marriage is not an easy thing to do. Just as sitting down to draft a pre-nuptial agreement before a wedding can be uncomfortable, having a happily married couple sit across a table with separate counsel in an adversarial stance can be complicated.
The downside of not updating a pre-nuptial agreement is that over time, circumstances change, and the assumptions made before the marriage turned out to be incorrect.
Take the example of the business and the vacation home. For the sake of this example, let us say the husband owns the business, and the wife owns the vacation home.
At the start of the marriage, the business is a start-up struggling to earn income, which leaves the couple no time to visit the vacation home. During this time, the wife is also working and is the primary breadwinner for the family. Fast-forward 10 years. The business is a success. The success of the business leads the wife to leave her job. She is now focusing on the growing family and helping her husband with the business. She is now doing work for the business, and even meeting with clients. The success of the business grows even more with the additional help of the wife.
Now let's say that due to the success of the business, the couple can now use the vacation home several times a year. Well, that home needs to be maintained. The husband makes decisions about contractors and is even doing work on the home on his own.
The original pre-nuptial agreement still states that the business belongs to the husband, and the vacation home belongs to the wife. However, reality has changed, and now the wife is adding significant value to the business, and the husband is adding significant value to the vacation home.
If this couple decides at some point to terminate their marriage, they have a pre-nuptial agreement, but what is it worth? The attorney for the wife will argue that the business would not have the value it has if it weren't for the wife, and she is now entitled to a percentage of the business. The attorney for the husband will argue that his work has significantly increased the value of the home, and since the wife allowed him to make decisions independently from the wife, he should now be entitled to a percentage of home's current value.
As for the agreed amount of support, that initially agreed upon number was based on a completely different set of circumstances and assumptions. An attorney will argue that the agreed amount of support that was placed in the pre-nuptial agreement 15 or 20 years earlier is not a number that reflects what is realistic or fair.
A pre-nuptial agreement is a great document to have. It shows that people are being mature and not allowing emotion to cloud the reality of life. It is also essential to know that a pre-nuptial agreement is a living document that can and should be adjusted as there are significant changes in the family's circumstances. If the initial assumptions made before the wedding are no longer accurate, the written agreement should be updated to reflect the new reality.
If you have any questions about drafting a pre-nuptial or postnuptial agreement or you are interested in reviewing the details of a previously signed agreement, call the Law Office of Anthony LoPresti.