The two most common questions I get about prenuptial agreements (often referred to as prenup) are:
- Should I get a prenup? Many people think of a prenuptial agreement but then fail to get it done. They may be afraid that their spouse will be offended (generally only on first marriage) or that it will cost too much money.
- Nearly everyone that gets married has thought of a prenup at some time or the other. It has become so commonplace that almost no one is offended by the suggestion. It is common knowledge that nearly 50% of marriages end in divorce, so only the super naïve think that they are somehow more special than half the world. If one spouse acts offended by the suggestion, you should ask yourself whether they have the best intentions.
- YES. Prenups can be as simple as spelling out your premarital property which is nonmarital in both Ohio and Kentucky. Many prenuptial agreements also protect growth on assets as well as business interests. More involved prenups will also allow for individual as well as joint ownership of accumulated property, acquired assets and earned income. More complex prenuptial agreements may spell out how parties may handle potential future spousal support, alimony or maintenance as well as buy out and may or many not include provisions for timing of divorce and/or fault.
- Many people think that it won’t matter because prenups are not enforceable. See #2 below.
- Are Prenups enforceable? The Courts in Ohio and Kentucky generally prefer prenuptial agreements and most often will to enforce their terms.
- Consideration. The courts must consider if there has been mutual consideration for signing of the prenuptial agreement. Marriage itself can be a consideration, but generally each party must acknowledge that they could be giving up something of value.
- Representation. Individual legal representation at signing is not required, however generally preferred and best practice when signing documents. Separate representation by each party strongly suggests to the court that each party was informed of their legal rights and made an informed and competent decision prior to signing.
- Kentucky law mandates that the prenuptial agreement be conscionable to both parties at the time of signing as well as at the time that it is to be enforced. As such, there is no such thing as an absolute “airtight” agreement. One example that I have run into was a case where both parties were gainfully employed at the time of marriage. They separated after the Wife became medically disabled and Husband continued to earn a substantial income. Even though the prenup forbade spousal support, the court found that the agreement had become unconscionable to Wife since she could no longer financially support herself and Husband was ordered to provide a modicum of spousal maintenance to allow her to live in a nursing home.
Careful drafting and review is important prior to signing any legal document, including a prenuptial agreement. In the event of divorce, the attorney should advise that the prenuptial agreement is generally enforceable but may look at other factors to determine the odds that a court will enforce in your case.