Prenuptial Agreements: Everything you wanted to know in the middle of the night but have nobody to ask. (Part I)

Periodically (and hopefully it will be very frequently), there will be articles posted. They will all be on topics that have to do with divorce or relationships between people.
The first post will be about Prenuptial Agreements. We will, in a later posting, deal with various other kinds of Agreements in marriages or relationships: Separation, divorce, living together, child support, etc.; High net worth divorces or extremely difficult divorces; Celebrity divorces; What does one do with luxury assets; How to get the best divorce lawyer you possibly can; What you should pay; What should you accept; Grandparents’ rights; Who gets embryos when the couple breaks up, etc. The first of a two-part series will be about Prenuptial Agreements.

Prenuptial Agreements: Everything you wanted to know in the middle of the night but have nobody to ask. (Part I).

1. What is a Prenuptial Agreement? A Prenuptial Agreement is a written agreement that a prospective husband and wife enter into.

2. What does a Prenuptial Agreement do? It is a vaccine that inoculates you against having a future highly contested divorce in the courts. The courts are the last place you want to be. Judges and court clerks are the most highly trained but overworked and underpaid civil servants in America. They are extremely good at dealing with divorce cases. However, there is no such thing as “free lunch”. The statistics are that 1 in 3 marriages end in divorce. Some people say it is much greater. Certainly, if you add on the simply unhappy marriages, the percentage raises. Because of these statistics, the court system, try as it may to avoid this, becomes overwhelmed and so there is a limited amount of time that can be devoted to each case. The fact that since all divorces stand in line to be heard by the court, some rich person’s with custody involved and/or cases with huge financial issues that can take up months and everybody else is left waiting. Little like the fact that if you have a private plane, the private plane gets as much time as it needs on the runway holding up the super large private plane behind it. The point of all this is it is best to work out your problems with your spouse and then go to a lawyer who can simply draw agreements and perhaps smooth out some of the rough patches of ice and then have the Agreement submitted to the court.

3. Are Prenuptial Agreements popular? Prenuptial Agreements have become very popular because all states have recognized them (even in Europe they are coming around to this way of thinking). More things could be included and, as indicated above, divorces can take a long time, and they could be very expensive and intrusive – going into all your personal financial affairs, how you save, how you spend your money, or, in custody which cannot be dealt with in a Prenuptial Agreement, every aspect of yours and your children’s lives.

4. What does a Prenuptial Agreement contain? It sets up a mechanism that will allow the parties to know exactly where they each stand financially at any point in future time if there is a divorce. It could cover items that could go from future homes the parties may live in and go down to an ashtray that grandma may have given the parties, to a set of dishes, kitchen utensils, a favorite lamp, a television set, etc. and what will happen in the event of a divorce.

5. What it cannot do. It cannot adjudicate or decide what happens to children in a divorce. Children are not autographed footballs, a bracelet, a tea set, etc. Children are wards of the court as long as they are “infants”. Infants depending upon the State in which you live, and are usually persons under 18 or under 21 years of age. The worst sorts of litigation are those involving children. Ironically, this is perhaps the main thing people wish could be dealt with in a Prenuptial Agreement. However, the wishes of the parties are certainly not binding but they could be offered into evidence, demonstrating that at least at one point in time these were their wishes.

6. Do they stand up? Many people think they do not, but that basically was influenced by Donald Trump’s Prenuptial Agreement and the fact that many people learn their law from the newspapers. The President is certainly innocent of anything unusual because he had a Prenuptial Agreement. Indeed, putting Paul McCartney aside, any mega-rich person who did not have a Prenuptial Agreement should see a psychiatrist and not a lawyer. Donald Trump’s divorce from Ivana was highly publicized and indeed there were multiple agreements (prenuptial and postnuptial) between them. This has been clearly reported in the media. The reason being, if Donald Trump, the smartest guy in the world and certainly the world’s best negotiator, had a legal dispute brought on by Ivana challenging the Agreements between them and she stated, “But how about poor me whose Agreement was drawn by the lawyer in the storefront down the street?” The answer is, these Agreements are alive and well and living in America. Yes, your spouse can sue to set aside the Agreement, but Donald Trump’s Agreement stood up under scrutiny and in the courts. The average person about to get married should know, “If the Agreement is properly drawn and both sides have their own lawyer, there is no problem.”
There is inherently no problem with one lawyer representing both parties, but it is dangerous and most lawyers would not do it. The difficulty is that later on when the Agreement is sought to be invoked, one person or the other says, “I thought lawyer X was my lawyer, but he was actually representing my husband/wife to be” and, therefore, this Agreement should be attacked.

There are other ground rules which must be followed in a divorce in which there is an Agreement and it must be free from duress, grossly unfair to the point that no person of sound mind would have made such an Agreement. The “other side” had an opportunity to read the Agreement, to understand it, have a lawyer explain it to him or her, etc.
The reason these lawsuits take place is because it is the only lawsuit in the world that if you sue, you are back with the original Agreement and you have lost nothing but legal fees.

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