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Premarital
/ Prenuptial Agreements FAQ
What
is the difference between a co-habitation or living together
agreement and a prenuptial or premarital agreement?
Couples
(either heterosexual or same sex) who to live together but
have no intention of getting married usually sign a co-habitation
or living together agreement to handle money and property
issues while they are living together and in the event they
separate.
A
couple who is getting married may sign a premarital or prenuptial
agreement outlining each of their responsibilities and property
rights during marriage. They may decide how property
will be divided, whether alimony will be paid in the event
of children, who will stay home and care for children, etc.
(also called antenuptial agreements).
A
pre-nuptial / cohabitation agreement (same sex included) can
be found in the Forms Store
Are
prenuptial or premarital agreements legal?
Courts
usually uphold premarital agreements unless one person shows
that the agreement is likely to promote divorce (by providing
for a large alimony amount in the event of divorce), was written
and signed with the intention of divorcing, or was created
unfairly or under duress (one spouse insisting that the other
sign a premarital agreement five minutes before the wedding,
and refusing to go through with the marriage unless the person
signs it).
Should
my fiancé and I make a prenuptial or premarital agreement?
This
is entirely a personal decision based upon your circumstances
and on the two of you. Some couples choose to make a
premarital agreement as a way of clarifying their intentions
and expectations, as well as their rights, should they split
up.
Other
couples make premarital agreements to circumvent what a court
might decide in the event of a divorce, e.g. if they have
both agreed that one partner should keep property or a family
business if the marriage ends. More frequently, premarital
agreements are made by individuals who have children or grandchildren
from prior marriages and a partner wants to ensure that the
bulk of his or her property passes to the children or grandchildren,
rather than the current spouse.
My
partner and I have been living together for several years.
If we get married will our current property agreement be enforceable
after we are married?
Probably
not. The laws of marriage will supercede your co-habitation
or living together contract. Contracts made before marriage
which determine money and property rights after marriage must
be made in contemplation of marriage in order to be enforceable.
Unless your living together contract was made shortly
before your marriage and you both planned to be married, a
court will disregard it.
If
you want to convert your living together contract into a premarital
agreement, follow these steps:
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Make
any agreed upon updates or changes to the terms of the
contract
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Rewrite
your agreement and call it a premarital or prenuptial
agreement. Be sure to state that it is made in contemplation
of marriage and does not take effect until you marry.
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Sign
the document in front of a notary.
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