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Although premarital agreements seem to belong to the “rich and famous,” everyday Nebraskans with premarital assets or possible inheritances could benefit from having one. Some people may want such an agreement so that they can predetermine how their assets and debts will be treated during a marriage, upon their death, or in the event of a divorce. The best practice is to plan and negotiate your premarital agreement months before the wedding. Our team of Omaha prenup lawyers at Slowiaczek Albers & Whelan have years of experience working with clients on family-related issues, and specifically premarital agreements. If you seek to draft a premarital agreement, let our Omaha law firm help; our prenuptial agreement lawyers will keep your best interests in mind and be sure to legally protect your assets.
What is a Premarital Agreement?
A premarital agreement, also called a “prenup,” is an agreement between two future spouses made in contemplation of marriage. Premarital agreements govern contentious issues that might arise in the case of divorce, such as spousal support and property division.
A common misconception is that prenups imply divorce or distrust, thus discouraging many couples from creating one. However, prenuptial agreements are actually for dedicated couples that want to define finances during marriage and have a plan in case a marriage ends in death or divorce.
Note that when a couple says their wedding vows, separate property can become marital property jointly owned by both spouses. A prenuptial agreement can further specify this by defining each spouse’s right to their own separate property and preventing property arguments down the road.
Prenuptial agreements can take the place of a divorce trial, as most issues that would be decided in a divorce by a judge can be decided in a prenuptial agreement before the spouses even marry. Typically, a prenup can resolve one or more of the following:
- each spouse’s rights in separate or marital property;
- each spouse’s right to buy, sell, transfer, mortgage, or otherwise manage or control property during the marriage;
- the division of assets and liabilities upon separation, death, or divorce;
- whether either spouse is entitled to spousal support, including how much and for how long;
- each spouse’s rights to death benefits from the other’s life insurance policy;
- the making of a will in support of the agreement;
- the state law governing the agreement; and
- any other issue the couple agrees upon.
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What Makes a Prenup Enforceable?
To be enforceable, a prenuptial contract must be in writing and signed by both spouses before marriage. The agreement won’t take effect until a couple actually marries. In any case, whether a couple is wealthy or not, prenuptial agreements could be useful in simplifying divorce proceedings in general and giving spouses financial security.
There are a few rules a prenup will always follow. For instance, Nebraska courts will not uphold provisions in prenuptial contracts which prevent a spouse from prosecuting domestic violence or which force one spouse to assume the other’s premarital debts. Nevertheless, agreements that exclude one spouse from inheriting upon the other’s death are almost always enforced.
Note that premarital contracts cannot predetermine a child custody or visitation schedule. A judge will make the final decision on custody by evaluating a child’s best interests reviewed at the time of a custody proceeding, but not before. Moreover, although parents can resolve many financial questions in a prenuptial agreement, they cannot resolve child support. Support belongs to the child and is not the parents’ right to contract away in a premarital agreement. Like custody, child support is evaluated based upon the child’s needs and the parents’ income at the time of separation or divorce. Any parental attempts to resolve child support in a prenup will be viewed as infringing on a child’s rights.
Be aware that basic contract rules apply to prenuptial agreements in Nebraska. Specifically, any agreement must be signed by the future spouses and put in writing. A couple must reach an agreement before marriage, though prenuptial agreements can be amended down the road as long as any amendments are written and signed by the spouses. Note that if a couple never marries, their premarital agreement isn’t enforceable.
A prenuptial agreement will likely be upheld if the following factors are present:
- each spouse signed the agreement voluntarily;
- the agreement is not unconscionably fair at the time it was signed;
- each spouse fully disclosed their assets and debts;
- each spouse has reasonable knowledge or could have obtained reasonable knowledge of the other’s financial situation; and
- the terms of the agreement don’t promote divorce.
Keep in mind premarital agreements must be voluntarily signed and reasonably fair. For example, in one Nebraska case the court determined that a spouse had not signed the agreement voluntarily because they were given the agreement just hours before the wedding. Although the spouse signed the agreement, they were unfairly pressured into doing so.
A lot of people think that premarital agreements are for the wealthy or people or people with high-value assets. While it’s true that many wealthier people do choose to use marital agreements to protect their assets before they’re married, an agreement can be made by any couple who wants to use it as a cushion.
If you’re considering signing a prenup, here’s what you need to know.
Pros and Cons of Premarital Agreements
You may not think it’s necessary to get a prenup before saying “I do,” but there are some reasons to consider one. The following is information on how prenuptial agreements can and cannot benefit you.
Pros of Prenups
- You should get a prenup if you can’t agree on finances. Prenups can be used to decide and agree on financial matters that have caused issues in your relationship.
- If you and your significant other can’t agree on how to handle your finances in your relationship now, an agreement can help you control the outcome of what happens with your money during your marriage and in the event of a divorce.
- Prenups can be used to protect an inheritance. Maybe your family left something very special to you. A premarital agreement can help keep your inheritance in your family.
Cons of Prenups
- Maybe one day you want to have kids together. Premarital agreements can’t be used to determine child support or custody. If you have kids and get divorced in the future, consult with your attorney about how child custody and child support should be worked out with your spouse.
- Additionally, it is possible to sign a prenup without a lawyer. A premarital agreement can dramatically affect your rights in a divorce. Signing a prenup without a lawyer present can prevent you from receiving certain entitlements.
Uniform Premarital Agreement Act (UPAA)
The Nebraska Uniform Premarital Agreement Act, commonly known as just the Uniform Premarital Agreement Act (UPAA), is a multi-state law that was created in 1983 to govern premarital agreements in order to create more consistency across states. The UPAA was adopted by 28 states.
The 28 states that adopted the UPAA include: District of Columbia, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Maine, Montana, Nebraska, Nevada, New Jersey, New Mexico, North Carolina, North Dakota, Oregon, Rhode Island, South Dakota, Texas, Utah, Virginia, and Wisconsin
Seek an Experienced Legal Advocate for Guidance
Most prenuptial agreements are upheld, though there are nuances to be aware of before signing one. Prenuptial agreements can affect a partner’s rights and responsibilities during marriage and even after a spouse's death or divorce. If you have legal questions or are considering signing a prenuptial agreement, contact an experienced prenuptial agreement attorney at Slowiaczek Albers & Whelan for legal guidance. Our legal team can work with you to draft the terms of your prenup to protect your best interests.
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