Getting married often brings a lot of excitement for couples, but some couples who decide to get married may want to provide themselves with some financial certainty for their future – especially if their relationship, unfortunately, ends in divorce.
Although some people may view creating a prenuptial agreement as planning for an eventual divorce, these agreements do provide important protections and peace of mind for spouses and their families.
Planning to get married involves planning for you and your spouse’s future, which also includes planning for your financial future – even a potential future where you and your spouse get divorced, though you both hope that doesn’t come to pass.
Preparing a prenuptial agreement involves the consideration of many complex legal issues, along with careful drafting, to ensure that your agreement will hold up in court in the event of a divorce.
If you have questions about prenuptial agreements or whether you and your spouse should consider drafting such an agreement, schedule a consultation to discuss the details of your case with a Huntsville prenuptial agreement lawyer from New Beginnings Family Law.
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What Is a Prenuptial Agreement?
A prenuptial agreement sometimes called an antenuptial agreement in Alabama, is a contract that you and your spouse enter into prior to or upon your marriage. In it, you both agree on how to resolve your marriage’s financial issues in the event of your divorce. These financial issues can include whether and/or under what conditions either spouse may be entitled to alimony or spousal support, who will pay for marital debts, and how marital assets will be divided between you and your spouse.
Prior to entering into a prenuptial agreement, both you and your spouse-to-be will need to prepare and exchange a complete inventory of your assets, debts, and income. This will allow you and your spouse to easily identify assets and property that were brought into the marriage by each of you, and therefore are separately owned and not subject to equitable distribution in divorce.
In your prenuptial agreement, you can also agree that certain assets will remain the separate property of one spouse, even if such property would normally be considered marital property.
Do I Need a Prenuptial Agreement?
Whether you and your spouse need a prenuptial agreement depends on you and your spouse’s goals. Although prenuptial agreements are popularly thought of as being used only by wealthy couples, any married couple who will have assets, debts, business interests, or children may wish to consider having a prenuptial agreement. Such an agreement can resolve ahead of time the financial and personal issues that need to be resolved in the event of a divorce.
It may seem unromantic to make plans for a potential divorce right at the start of your marriage. However, the fact is that many marriages these days end in divorce. The happy couples who enter those marriages don’t plan to get divorced when they say “I do,” but it does eventually happen in many cases. Think of it like car insurance. No one plans to get into a crash, but it makes sense to have a backup in case you do.
It can often prove easier to resolve the financial issues that would come up in divorce while you and your spouse are still happily together. Leaving them to be resolved in a divorce, when you and your spouse’s relationship may have deteriorated into personal animosity, could make it much more likely that the financial issues of your divorce will need to be resolved through expensive and time-consuming litigation.
What Does a Prenuptial Agreement Cover?
The topics covered by a prenuptial agreement depend on a couple’s particular financial and personal circumstances. Although your agreement will likely cover how assets and debts will be split between you and your spouse in the event of a divorce, you can also choose to address other matters such as spousal support, how debts will be resolved, or even who will take ownership of pets in the event you and your spouse divorce.
Prenuptial agreements may also cover other matters such as:
- Whether the spouses will agree to resolve issues in divorce through alternative dispute resolution, such as mediation or arbitration, as opposed to proceeding to litigation in court
- How retirement assets or business ownership interests will be divided in a divorce
- Whether either spouse may continue to live in the marital home
- If one spouse continues to live in the marital home following separation, how expenses for the home, such as mortgage payments, taxes, insurance, and upkeep will be paid
- How student loan debt will be allocated between spouses
- Which assets will be expressly designated as separate property, or as marital property subject to distribution between the spouses
In Alabama, prenuptial agreements cannot be used to resolve divorce matters such as child custody or child support. Although parents can reach an agreement on child custody arrangements, such matters must ultimately be approved by the court, which will determine whether any child custody arrangement serves the child’s best interests. Similarly, the right to child support belongs to the child, not to either parent and therefore cannot be negotiated or bargained away by the parents.
Do I Need a Lawyer for a Prenuptial Agreement?
Although you and your spouse may draft your own prenuptial agreement without legal assistance, you both will likely be better served to have legal representation to look after your respective rights and interests and to ensure that your prenuptial agreement covers all the issues that may likely arise in the event of a divorce.
After you and your spouse have discussed your concerns, goals, and needs for a prenuptial agreement, your attorneys can help you put your agreement into the proper legal form so that your respective agreements and wishes are later recognized by a court if your prenuptial agreement needs to go into effect.
A prenuptial agreement attorney can help you and your spouse by:
- Explaining the purposes, advantages, and disadvantages of executing a prenuptial agreement
- Drafting the terms of a prenuptial agreement with your spouse
- Representing your goals and interests during prenuptial agreement negotiations
- Reviewing the terms of any prenuptial agreement presented to you by your spouse
If you and your spouse do later choose to get divorced, an attorney can also help you enforce the terms of your prenuptial agreement, or if you have concerns about your prenuptial agreement’s fairness or validity, they can fight to have your agreement voided by the court.
Both you and your spouse should have your own independent legal counsel to avoid later questions about a potential conflict of interest if you have only one attorney or law firm representing both you and your spouse. Although it may seem expensive to hire two different attorneys, it can be acceptable for one spouse to cover the legal fees for both spouses, so long as both spouses choose their own legal counsel.
Alabama Prenuptial Laws
Every state, Alabama included, has its own individual laws governing the validity of prenuptial agreements. Not every prenuptial agreement will be held valid under Alabama law.
If you and your spouse are getting married in Alabama or are moving to Alabama, you should ensure that your prenuptial agreement meets the requirements of Alabama law. Laws and requirements for prenuptial agreements in Alabama include:
- The agreement must primarily focus on financial matters, including how to split the spouses’ assets and debts and whether either spouse may be entitled to financial support from the other spouse. Provisions of prenuptial agreements that purport to resolve issues of child custody or child support will not be enforced by an Alabama court.
- Each spouse must have knowledge of the other spouse’s assets, income, and debts. This is typically accomplished by each spouse preparing a certified financial statement, which is attached to the prenuptial agreement. If a spouse intentionally or negligently withholds material financial information, the court may invalidate certain provisions of a prenuptial agreement or throw out the entire agreement.
- A prenuptial agreement will not be enforced by Alabama courts if the court finds that one spouse was subjected to coercion, duress, fraud, or undue influence by the other spouse to execute the prenuptial agreement.
- If one spouse has legal representation in connection with executing a prenuptial agreement, the other spouse must also have independent legal representation or must intelligently and voluntarily waive the opportunity for such representation. Courts may invalidate a prenuptial agreement if only one spouse had the benefit of legal counsel or if counsel improperly engaged in joint representation.
- The court will also invalidate a prenuptial agreement if it determines that the agreement is not fair, just, equitable, or if it heavily favors one spouse over the other.
Contact a Prenuptial Agreement Lawyer Today for Help
If you and your spouse are considering preparing a prenuptial agreement, you both should speak to attorneys about your legal rights, interests, and goals in the event of a potential divorce.
Learn more about the process of creating a prenuptial agreement for you and your spouse and how a prenuptial agreement can best serve you and your family. Schedule an initial consultation with a Huntsville, Alabama prenuptial agreement attorney from New Beginnings Family Law by calling us or reaching out online now.