Second Marriages and the Increased Use of Prenuptial Agreements
10/04
With the changing population trends in this Country, second marriages are commonplace. When considering a second marriage, it is not unusual that there is a strong desire to protect the property rights of children of a first marriage through the use of a Prenuptial Agreement.
Historically, Prenuptial Agreements commonly focused on the waiver of inheritance rights or the waiver of alimony. These were typically used when one spouse was far wealthier than the other. Due to the sociological and economic changes affecting a large portion of the population today, there has been a proliferation of Prenuptial Agreements in recent years.
Whether it is a first or second marriage, there is no question that each partner should be fully familiar with the other’s assets, debts and major expenses. In second marriages, where both spouses have children from prior marriages, the financial obligations of each spouse can become very complicated. According to Financial Planner Chris Muratori, an Investment Representative with Edward Jones Investments in Mahopac, “Many couples have found a workable solution by paying major expenses – mortgage, car payment, utilities, etc. – out of a checking account, ,while still maintaining separate accounts to handle incidentals, gifts and other costs incurred by just one partner.” Plans such as these can be spelled out in a Prenuptial Agreement.
The overriding concern for most parents entering second marriages is ability to strike a balance between providing for their spouse as well for their children of the first marriage after they have died or if the second marriage fails. It is imperative that you consult with an attorney experienced in the drafting of Prenuptial Agreements because a poorly drafted Prenuptial Agreement can be subject to attack and can be held to be invalid.
There are several prerequisites for a valid and enforceable Prenuptial Agreement. First, there must be full and complete written financial disclosure between the parties. Second, each party must be represented by counsel of their own choosing to review the Agreement. Neither the other spouse or his or her attorney should recommend or suggest who the attorney should be for the other party. Third, the document must be properly acknowledged and notarized. Fourth, there must be sufficient time between the signing of the Agreement and the wedding to ensure that the Agreement was not signed under duress. A Prenuptial Agreement signed right before a wedding could easily come under attack and be held invalid. Fifth, the Agreement must be fair. The Courts have held that the Agreement must be free from “undue and unfair advantage.”