With the average age of marriage increasing, people are bringing more and more assets into a marriage. With that in mind, you should consider how to protect those assets in the event of a divorce. People have a tendency to scoff at the idea of a prenuptial agreement, also known as an antenuptial agreement or ‘prenup.’ Prenups are viewed as a sign that you do not think your marriage will work out or that you do not trust your future spouse. But I will ask you this: Would you rather decide how your assets and liabilities are divided when you are in love with your partner and have each other’s best interests at heart, or would you rather wait to have that discussion until the worst-case scenario has occurred and you now despise each other?
What goes into a prenup?
A prenup helps ensure that you and your future spouse have a clear understanding of the division of finances and property if a divorce were to occur. It can also be used to outline how income will be utilized during the marriage, i.e. who pays what bills. In addition, a prenup affords you the opportunity to discuss various scenarios, such as whether you will receive additional finances at the time of divorce if you stayed home to take care of the kids.
If applicable, a prenup might also cover how business assets will be divided, how future inheritances will be divided, how children from a prior marriage will be taken care of, who is responsible for previous debts, who is responsible for debts incurred during the marriage, if any assets or finances will be kept separate from the marital estate, and how retirement or pension plans will be divided.
Sometimes a court will not follow the prenup during the divorce… why?
You had a bad lawyer. Kidding. However, a good lawyer will advise you that there are certain requirements a court will look at when deciding whether a prenup is valid, including the following:
- Did you disclose all your assets? If you were hiding assets from your future spouse, then they did not know what they were truly agreeing to when signing the prenup. Therefore, it is unfair to hold them to that agreement.
- Is the agreement unconscionable? What people define as fair might not be the same, but if a prenup is heavily weighted in favor of one spouse a court might find it invalid. This can be especially true when there is financial disparity between the parties, e.g. a millionaire with five lawyers talked their poor future spouse who could not afford an attorney to sign an agreement where the millionaire gets the majority of the assets if they ever divorce.
- Did each person have time to read and understand the agreement without pressure? If you handed your spouse a prenup right as you were about to walk down the aisle, that can be viewed as duress. If you are considering a prenup, make sure you prepare it well in advance of the wedding.
- Did each party sign and notarize the agreement? It is hard to hold your spouse to an agreement if they refused to sign it. No signature = no consent to be bound by the terms.
- Did you agree that neither party should pay child support? It is unlikely a court would enforce this provision, because courts want children to be taken care of. However, the court may still find the rest of the agreement valid and binding.
Tennessee’s public policy favors prenuptial agreements.[i] These agreements are generally enforceable when entered into freely, knowledgeably, in good faith, and without the exertion of duress or undue influence.[ii]
How do I get my future spouse to sign a prenup?
For reasons discussed above, bring this conversation up as early as possible. Remind your partner that the goal is not to get a divorce, but that you want to make sure you are both protected in the event of a worst-case scenario. Take the time to talk through your concerns; after all, they say strong communication is the basis of a healthy marriage. Take the time to consider where the other person is coming from. And if that doesn’t work, consider sending them this article.
If you or your future spouse is considering a prenuptial agreement, you should seek the advice of a knowledgeable Nashville divorce attorney. The professionals at Cole Law Group have the knowledge and experience to assist you with any questions you may have about protecting your interests. Please contact us at (615) 490-6020 to request a consultation.
[i] Law v. Law, No. E2021-00206-COA-R3-CV, 2022 Tenn. App. LEXIS 166 (Ct. App. Apr. 26, 2022)
[ii] Tenn. Code Ann. § 36-3-501