If you’re considering plunging into the matrimonial waters for the second time, you will want to assure that your own grown children receive the assets you want them to inherit.
According to statistics, there’s a 50-percent chance your marital boat will sink due to divorce. It’s even more likely that one spouse will die before the other. To ensure your wishes are carried out in the event of death or divorce, understand this: Wills-only are not always foolproof, depending on the laws in your particular state.
It may be in your best interest to write a prenuptial agreement. Even though couples may associate such agreements with discord, they often promote harmony, especially when adult children are involved.
Prenuptial agreements are increasingly used by older people marrying for a second or third time who want to provide at their death for children from earlier marriages. Other prenuptials are designed simply to protect assets brought to a marriage, particularly in May-December relationships.
The agreements, simply put, are contracts that spell out how property owned by a couple is to be split in the event of divorce or death. Prenuptial agreements have become prevalent, partly due to equal-distribution divorce laws that govern divorce settlements in most states.
In such states, a spouse is no longer guaranteed sole ownership of property just because his or her name is the only one on the deed. A judge can order any property or valuable items sold to meet the demand for equitable distribution.
Prenuptial agreements are enforceable if the following are strictly adhered to:
• Both parties are represented independently by an attorney.
• The agreement is put in writing before the marriage (two months or more is good).
• Both partners make a full disclosure of all assets.
• The agreement is reasonable and not unconscionable (cruel or absurd) when enforced.
• Both parties sign statements saying they understand the terms of the contract and are not signing it under duress.
Most states now give considerable credence to prenuptial agreements and enforce them based on the concept of fairness. After all, there’s little point in making an agreement that’s likely to be challenged when the point of making the agreement in the first place is to save litigation and fees. If the agreement is challenged on the basis of fairness, litigation costs escalate quickly. If the points above are followed, however, odds are the agreement will be enforceable.
State bar associations or the American Academy of Matrimonial Lawyers (www.aaml.org) can provide referrals to help you select a reputable, experienced attorney.