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Pre-nuptial Agreements & Protection of non marital assets

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There are two common misconceptions about Pre-nuptial Agreements; the first is that they are only for wealthy people, the second is that they have to be inherently unfair to one party.  A pre-nuptial agreement is a contract, and as such it can do just about whatever the parties want it to do.  Commonly, they are used to keep pre-martial assets, or assets acquired by gift or inheritance from one of the two parties families, separate from the martial estate.  They can also dictate that one party (or both) refuses the right to receive alimony, or dictate a percentage distribution of a martial estate, in the event of divorce.

Obviously, a discussion with your future spouse regarding a pre-nuptial agreement won’t be the most comfortable one you’ll ever have.  However, with the right planning an Agreement can be created that will protect both parties in the event of divorce by memorializing their understanding of their relationship prior to the marriage beginning.

However, it is possible (not even uncommon) for one party to try and sneak prejudicial language into a pre-nuptial  agreement to hurt their spouse later in the divorce.  For this reason it’s important to have the Agreement reviewed by separate counsel even if your potential spouse presents it to you and tells you, “there is nothing to worry about”.

Finally, beware of “form” pre-nuptial agreements.  Generally they provide for no acquisition of marital property, no alimony, these agreements can be confiscatory and without the proper documentation can be disallowed by the Court.