When it come to marriage, nothing is simple; especially if the marriage breaks down and the spouses divorce. Now days, divorce can get complicated, with separate and marital property, and custody and visitation of any minor children. In the case of a breakdown in a marriage, many couples are choosing to draft a premarital agreements as a way to reduce the complications in a dissolution as a way to protect their premarital assets and care of ny children prior to the marriage. These premarital agreements, if drafted fairly, determine how to separate spouses property in the event of a dissolution or the rights of the surviving spouse in the event the marriage should end in death. Since different states have different rules, the question is: should all states adopt the Uniform Premarital Agreement Act (UPAA) (Ravdin, 2012).
Typically, premarital agreements were used by older spouses who were either widowed or divorced and had considerable wealth or children. Until the case, Posner v. Posner, 233 So. 2d 381 (Fla. 1970), most premarital agreements were usually unenforceable because they gave the courts the illusion that divorces were easy and attainable. See Gross v. Gross, 464 N.E. 2d 500 (Ohio, 1984). However, premarital agreements hve gained popularity and courts will usually consider premarital agreements as long as they are executed voluntarily and financially fair. (UPAA [section] 6; Brown v. Brown, 26 So. 3d 1222 (Ala. 2009); Colo. Rev. Stat. [section]14-2-301, et. Seq.) (Ravdin, 2012).
Now days, younger couples are entering into marriages with premarital agreements. There are three reasons why younger couples are drafting premarital agreements. The first is that they may have an inheritance or a family business from wealthy parents or grandparents where the prospestive bride or groom may become apart of, and they wish to keep inheritance or family business in the family in the event of a divorce. A second reason could be that the either party may have come from a divorced family and they saw what it did to them growing up and wish to seek solutions over property and custody disputes should the marriage dissolve. Finally, a third reason is that younger people are delaying marriage in favor of careers that may bring them considerable wealth and assets (Ravdin, 2012).
In order for a premarital agreement to be valid, it must follow certain guidelines. The party who is seeking the premarital agreement must give the fiance(e) notice soon after the engagement, but before the wedding. Both parties must have the option to obtain counsel who will give legal advice regarding the terms of the premarital agreement. This leaves each party open to negotiations, albeit not becoming involved in "take-it-or-leave-it" sides. These negotiations must be planned well in advanced of the wedding so each party can fully disclose assets and income. In the event that premarital agreement shows any kind of unfairness, both parties should be open to negotiations where each has the advantage of economic security (Ravdin, 2012).
There are special concerns when it comes to premarital agreements. One is the possibility of future children that should come into the marriage and the wife remains in the home to take care of the household and needs of the children and husband works outside the home. For example, in the case of Lane v. Lane, 202 S.W. 3d 577 (Ky, 2006), the made a $1 million per year at the time of dissolution, making the premarital agreement financially unfair. The timeline of divorce for younger couples vs. older couples can also be of some concern, as was in the case of Martin v. Farber, 510 A. 2d 608 (Md. Ct. Spec. App. 1986), where it resulted in leaving nothing to the husband after the wife died after a 40-year marriage (Ravdin, 2012).
Yet another concern that could occur is when a premarital agreement grossly affects a disadvantaged party after a pre-determined level of unfairness to a party. These situations can occur after a marriage ends in either divorce or death after 20 or 30 years and the party is unable to work, develops health problems, or their is an inflated cash value on a fixed cash payment, or the wealthier party looses the business due to business failure or bad investments and is unable to meet the payments agreed upon in the premarital agreements. This occured in the case of Justus v. Justus, 581 N. E. 2d 1265 (Ind. Ct. App. 1991), where the husband's failed business did not give him relief from an obligation of making cash payments in the premarital agreements (Ravdin, 2012).
When younger couples enter into marriages with premarital agreements, both party's reserve the right to seek spousal support should the marriage end in divorce. It seems only natural if one party is financially weaker, the weaker spouse should seek spousal support and the wealthier spouse waive the right. The weaker spouse can seek spousal support in two ways: a binding support arbitration claim, or in a limited support waiver. This situation would result until a child is born, or on the anniversary of the marriage. The right to seek spousal support would be reinstated to the weaker spouse in order to give him or her economic security to the spouse who left the work spouse to be the homemaker in the marriage (Ravdin, 2012).
The premarital agreement also gives each party the right to maintain separate property in the form of an inheritance,while sharing and maintaining marital property during the marriage. If, for some reason, a piece of separte property becomes singled out as marital property, such as interest in a business by the other spouse, this item could give the other spouse an equitable disribution claim into retirement benefits of the owner spouse. Even if the wealthier spouse retains the exclusive rights to property or assets in his or name, the other spouse could have the same rights to the property or assets (Ravdin, 2012).
In the event of death between one of the parties, under state law, the survivor spouse retains the rights to any pension plan survivor benefits as well as a share of the deceased spouse's estate as if there were no premarital agreement. Both parties can consider life insurance premiums that can be dependent upon the type of plan each party opts for. Or the parties can consider the "sunset" clause, when marital rights are restored after a certain number of years from either death or divorce as if a premarital agreement never existed. A good premarital agreement will consider the needs and interensts of both parties involved in the agreement. A premarital agreement must also have full disclosure of assets and income between the parties. It must also include a schedule of each party's assets and debts, each parties federal and state income tax returns for the current year and any required years, each parties income and expense declaration, and any non-priviledged documents in the possession or control of either party or their attorney that is related to negotiations and preparations of the agreements that has not been produced (Ravdin, 2012).
After reviewing and researching the material for premarital agreements, it would seem in the best interest for all states to adopt the Uniform Premarital Agreement Act (UPAA). In an age where half of all marriages seem to end in divorce, couples entering into marriage should have the right to draft premarital agreements to put an end to such disputes like separate or marital property and when deciding who should care for any minor children either from a previous marriage or children born into the marriage. I am in complete agreement of every state adopting the UPAA as a way of protecting separate or marital property, assets, or any children born into, or prior to the marriage, so as to prevent undue fighting between the parties involved.
References
Ravdin, L. J. (2012). Premarital Agreements and the Young Couple. American Journal of Family Law. 26(2), 77.
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