Although there was a time when the mere mention of a prenuptial agreement could stop wedding plans in their tracks, that is no longer the case. In fact, prenuptial agreements have become quite common in recent years for several reasons, including the increase in the number of second marriages and an increase in the average age at which couples enter a first marriage. One of the primary reasons for entering into a prenuptial agreement is to avoid a contentious and lengthy divorce if the marriage doesn’t work out, but do they actually work? To help answer that question, a Murfreesboro divorce lawyer explains how a prenuptial agreement impacts the divorce process.
What Is a Pre-Nuptial Agreement?
A prenuptial agreement (also known as a premarital or antenuptial agreement in Tennessee) is an agreement entered into by a couple in contemplation of marriage that constitutes a legally enforceable plan for how the future spouses will divide up their assets if they divorce someday or if someone dies. A prenuptial agreement must be finalized before the couple marries and will become effective as soon as the parties are legally married. If certain conditions are met, a prenuptial agreement is 100 percent enforceable in the State of Tennessee. In fact, courts generally look favorably on prenuptial agreements if the agreement was entered into knowingly and voluntarily and the terms are fair.
What Issues Can Be Settled in a Pre-Nuptial Agreement?
A prenuptial agreement is not a substitute for the divorce process nor for a comprehensive estate plan; however, it can settle many of the most frequently contested issues in a divorce. For example, a prenuptial agreement can:
- Determine the division of financial and investment accounts
- Require that one or both spouses maintain life insurance
- Determine the rights and obligations of each spouse with regard to marital property in the event of death or divorce.
- Payment of alimony in the event of a divorce
- Decide if a surviving spouse can continue to live in the parties’ marital home
What Issues Cannot Be Settled in a Pre-Nuptial Agreement?
While many issues can be settled in a prenuptial agreement, issues relating to custody and/or support of the minor children of the marriage cannot be determined ahead of time. The reason for this is that all issues concerning minor children must be decided using the “best interest of the child” standard. Because there is no way to know ahead of time what will be in a child’s best interest if the parent’s end up getting a divorce, custody, and support of the child(ren) cannot be determined ahead of time in a prenuptial agreement.
What Happens If the Marriage Ends in Divorce?
If the parties to a prenuptial agreement end up deciding to end the marriage, the terms of the prenuptial agreement should control many of the issues in the divorce. If neither party challenges the validity of the prenuptial agreement, that is precisely what happens. The terms of the agreement become corresponding terms in the Marital Settlement Agreement. If, however, a party challenges the agreement, litigation will ensue. Some common reasons given for challenging the validity of a prenuptial agreement include:
- Failure to disclose assets and/or the value of assets – each party must make a full and fair disclosure of all assets before signing a prenuptial agreement. If a party hides assets, or fails to disclose the true value of assets, the agreement may be declared invalid.
- Fraud – this could refer to anything from lying to a party about what they are signing to falsifying a signature.
- Coercion – usually refers to persuasion based on the use of force or the threat of force
- Duress – if violence, or the threat of violence, was used to get a party to sign the agreement, the agreement will not be upheld.
The challenge to the prenuptial agreement must be fully litigated before the divorce process can resume. If the agreement is upheld, the terms of the agreement then govern the corresponding issues in the divorce. If the agreement is declared invalid, however, the terms of the agreement become irrelevant and all issues in the divorce must be negotiated or litigated as if the agreement never existed.
If you are considering entering into a prenuptial agreement, it should be clear by now how important it is to work with a Tennessee divorce attorney throughout the drafting and execution of that agreement to ensure that it will withstand a challenge should one ever be brought during a divorce.
Contact a Murfreesboro Divorce Lawyer
If you are contemplating a prenuptial agreement in the State of Tennessee, it is in your best interest to consult with an experienced Tennessee divorce lawyer. Contact the team at Bennett, Michael & Hornsby today by calling 615-898-1560 to schedule your appointment.