A prenuptial agreement is a type of marital agreement, which spouses can create to determine their rights and responsibilities to marital and separate property. There are many common misconceptions about prenuptial agreements. A prenuptial agreement, when done well, can protect both spouses, and it can even make a marriage stronger. To create an agreement that is enforceable and fair, it’s important to work with a marital agreement attorney in Wichita.
Myth: Prenuptial Agreements Only Apply During a Divorce
Prenuptial agreements do determine how assets are divided if a couple divorces, but this is not their only use. These agreements determine each spouse’s financial and property rights during their marriage, after a divorce, or after the death of one spouse. Prenuptial agreements can be a strong foundation for an estate plan. These agreements can also determine the inheritance rights of your children, which is especially useful if you have children from a prior relationship.
Myth: A Prenup Only Benefits You If You’re Wealthy
The benefits of a prenup exist regardless of the level of wealth that couples and individual spouses have. A marital agreement enables spouses to avoid lengthy litigation or negotiation if they divorce, which can save any couple money. Prenuptial agreements also allow spouses to have an open and honest discussion about their finances, which is a conversation that can strengthen any relationship.
Myth: Proposing a Prenup Means That You Have a Bad Marriage
Many people believe that discussing a marital agreement is an admittance of failure or shows that you do not trust your partner. This is not the case. A prenuptial agreement can, in fact, create a stronger relationship by enabling spouses to discuss crucial financial decisions and plan for the future. If spouses are concerned about the financial impact of a potential divorce, having a plan that protects them can make them more secure in their marriage.
Because marital agreements can outline property rights in a marriage, this can also lessen conflicts between spouses while establishing clear expectations and understanding.
Myth: Prenuptial Agreements Are Unenforceable
A prenuptial agreement is typically fully enforceable by the court, and such agreements are not often voided by the court. There are two main reasons why a court would void a prenuptial agreement:
- It includes terms that are unconscionable to one spouse.
- It does not follow state contract laws.
If the contract wasn’t signed, was signed under duress, or broke contract law in other ways, this would result in a voided prenuptial agreement. If spouses do not disclose all relevant financial information, this breaks contract law. If terms within the agreement are unreasonably unfair to one spouse, such as leaving them in financial hardship if enforced, the court may void the contract or the specific provisions that are unconscionable.
Unless these specific laws are broken, a prenuptial agreement will be enforceable.
Myth: Prenups Are Too Expensive
Marital agreements can be costly, particularly with the support of an attorney. However, the cost of a marital agreement is significantly less than the cost of litigating or negotiating the division of property if a couple divorces. If an agreement is unenforceable when a couple divorces, then this benefit is lost, and couples spend money on both processes. This is why it is beneficial to work with an attorney, as they can create an enforceable agreement.
Myth: A Prenup Only Protects One Spouse
A well-crafted prenuptial agreement should protect the interests of both spouses. The myth that a prenup only protects one spouse’s assets, typically the rich spouse’s, comes from a misconception that a prenuptial agreement is created by one spouse while the other spouse signs it without input.
Prenuptial agreements instead should be collaborative documents made by both spouses, where they discuss financial issues and work to protect both of their interests during their marriage and in the event of divorce. This type of agreement, especially when legal representation is present during negotiation or to review the agreement, is more likely to protect both spouse’s rights equally, without only benefiting one spouse.
A prenuptial agreement that only protects the assets of one spouse and does not provide the other spouse with enough assets to support themselves is likely considered unconscionable and will not be enforced by the court.
FAQs
Q: What Are the Disadvantages of a Prenuptial Agreement?
A: Some of the disadvantages of a prenuptial agreement include:
- It can be a waste of time and effort if it is unenforceable when a couple gets a divorce.
- A prenup is more effective with legal counsel, which is more costly.
- If the court does not invalidate an unfair agreement, one spouse may be worse off.
- The agreement only addresses property division and sometimes spousal support; it cannot address other parts of divorce, such as child custody or child support.
Q: What Are Five Terms That Cannot Be Included in a Prenuptial Agreement?
A: A prenuptial agreement cannot include the following five terms:
- Child custody and child support decisions. This is because these decisions have to be made with the child’s interests in mind at the time of the separation.
- Unconscionable terms. If the agreement is unreasonably unfair to one spouse, it will be unenforceable.
- Incentives for divorce. Any terms that encourage divorce are not allowed.
- Illegal terms. There cannot be terms about illegal activity or requiring a spouse to consent to illegal activity.
- Personal preferences. Any non-financial terms that dictate a spouse’s personal conduct are not allowed.
Q: Are Prenups Legal in Kansas?
A: Yes, prenups are legal in Kansas. Prenuptial and postnuptial agreements are both types of marital agreements. They are legal and enforceable as long as they follow contract law and both parties disclose the relevant financial information prior to creating the agreement. Prenuptial agreements are created prior to marriage and are only enforceable once the couple gets married.
Q: What Voids a Prenup?
A: A prenuptial agreement is voided if it does not meet contract law. This may include:
- The agreement is not signed by both parties.
- The parties did not disclose relevant financial information and didn’t waive the right to that information prior to signing.
- One party signed the agreement under duress or force.
- One party lacked the testamentary capacity to sign the agreement, such as being under the influence, underage, mentally incapacitated, or mentally incapable.
To create an agreement that is less at risk of being voided, it’s important to work with a skilled attorney.
Contact Stange Law Firm in Wichita
At Stange Law Firm, our attorneys can help you create a fair and effective prenuptial agreement. Contact us today.
