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Law Issues
Premarital Agreements
by Russell A. Fowler, Esq.
rfowler@winchesterlaw.com
Perhaps one of the least utilized means for avoiding or resolving disputes arising from marital separation is the premarital or prenuptial agreement. There may be several reasons for this. First, the availability of premarital agreements may not be widely known. Second, premarital agreements are not for everyone. Those with very few assets going into a marriage are less likely to realize the benefits of a premarital agreement. Third, premarital agreements are often looked upon as having a chilling effect upon a new relationship. The notion that the parties to a marriage would arrange for a possible dissolution of the marriage before the marriage takes place and at the very time that the parties are pledging themselves to each other "until death do us part" is often viewed as inconsistent and indicative of a lack of true devotion.
Proponents of premarital agreements typically are made up of two groups: those who bring substantial assets to a marriage, and those who have previously suffered through the emotional and financial costs of separation and divorce. These groups tend to focus on protecting their personal estates from the less affluent spouses and preserving at least a substantial portion of their estates for future generations or for children from a prior relationship. A third, but less common reason for a premarital agreement is the desire of each party to provide for the other party prospectively in case of divorce. The rationale is that the parties are much more likely to genuinely care and provide for each other at the inception of the relationship and can do so at a relatively low cost. The obvious alternative is to risk waiting until the marriage is dissolving and then engage in hostile and expensive litigation to resolve issues that could have been easily resolved in an earlier premarital agreement.
Basically, for those who are about to enter a second marriage and for those who have substantial assets, premarital agreements make good sense. Those who are interested in pursuing a premarital agreement, but who are wary of the reaction of the other party should consider suggesting to the other party a premarital consultation with an attorney to discuss issues of possible importance, such as wills, powers of attorney, trusts, purchase of a home, etc. It is in that context that the attorney will have the opportunity to raise the question of whether or not a premarital agreement might benefit the parties.
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