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Provisions to include and exclude with your premarital agreement

The number of issues that can be involved in a divorce are myriad, and the divorcing spouses will bring their own varying personalities and traits to the table during the process. This means every divorce is unique, and though some matters are common among many divorces, it is unlikely that any one divorce will play out in the same way as another divorce.

Some couples take proactive steps to address potential future divorce issues in a premarital agreement (sometimes also referred to as a prenuptial agreement, prenup, or antenuptial agreement). Such an agreement is a critical document in a future divorce proceeding, but it must be appropriately crafted and completed prior to your marriage. This means you and your future spouse should consider issues related to divorce before you even get married, which can be difficult. 

It is important to be aware of the following with regard to a premarital agreement:

  • Your premarital agreement must be in writing with a statement of assets and signed by both parties.
  • Your premarital agreement can define the rights and obligations of each of you in any property and provide which property is considered "separate" (belonging to one spouse) and "marital" (belonging to both of you).
  • You can modify or eliminate any potential future spousal support (alimony) obligation.
  • You can protect yourself from your spouse's debts and make provisions for children from a past relationship.
  • You can protect your estate plan, your family business, and even outline specific responsibilities for each spouse during the marriage.
  • For all a premarital agreement can do, there are subjects that are unenforceable. You can't discuss child custody, child support, or anything illegal.
  • In order to guard against your premarital agreement being deemed unenforceable, you each must fully disclose your respective financial conditions, there cannot be any fraud or duress in entering into the premarital agreement, each of you must enter into the premarital agreement voluntarily, you should each consult with independent legal counsel, and the premarital agreement cannot be unconscionable at the time it was executed. 

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