By Alexis Doree |
Getting Married? Consider a Prenuptial Agreements
If you recently got engaged, first off, congratulations! Wedding planning can be an exciting (and chaotic) time in a couple’s life. While your main focus may be saying yes to the dress and deciding what song you will be walking down the aisle to, you should strongly consider having a prenuptial agreement (“prenup”) drafted.
Now let’s be honest. It might not seem romantic to ask your partner to sign a prenup, however, it protects the both of you in the event the marriage ends badly. While North Dakota has the lowest rate of divorces in the U.S. at only 8%, it is better to be safe than sorry.
What does Prenuptial Agreements Cover?
A prenup is a contract a couple signs before entering into a marriage. Its purpose is to address the following issues:
– Whether spousal support will be awarded;
– A party’s right to separate property (property acquired before the marriage) and marital property (property acquired during the marriage);
– How to divide debts and liabilities upon divorce or death;
– Entitlement to each other’s retirement or pension benefits;
– Whether attorney’s fees will be awarded in the event of a divorce;
– *Any other issues the couple agrees upon
* While other states may differ, North Dakota does not allow prenups to govern how child custody and child support will be awarded. Both parents are required to provide financial support to their children and neither are allowed to contract away that obligation. Parents cannot officially resolve child custody until the divorce process begins.
North Dakota also bans a prenup to include limitations on a victim’s right to seek justice or reparations for domestic violence, penalties on either party for filing for divorce, and modifications to a court-ordered separation.
If a prenup includes any of the above provisions, the court will simply ignore those portions of the agreement.
When is it Binding?
For the contract to be binding in North Dakota, the agreement must be in writing and signed by both parties before marriage. It only goes into effect after the couple marries. If the couple does not marry, it is unenforceable. It may also be unenforceable if one or more of the following factors exist:
– One party did not sign it voluntarily: or
-The agreement is unconscionable (severely unfair) because:
o One party failed to fully disclose his or her assets;
o The defrauded party did not waive in writing his or her right to access the other party’s financial information; or
o The defrauded spouse lacked access to knowledge of the other party’s financial information.
Even if the prenup was signed voluntarily by both parties, it may be deemed unconscionable and therefore, unenforceable. For example, if a party becomes dependent on state assistance because he or she waived spousal support in the prenup, that portion of the agreement may be set aside.
Who Should Get a Prenup?
There is a common misconception that only the rich get prenups, however, it can be modified to meet the needs of any couple. It can be used to protect a business owner’s assets and provide a tax shelter, it may be used to simplify a potential divorce to save money on attorney’s fees, or even to preserve a party’s inheritance and to keep property within his or her family.
If you decide not to sign a prenup and you get divorced down the road, North Dakota courts will divide your assets and property according to state law. Therefore, to ensure you have a say in how you want your assets and debts to be dealt with in the event of divorce or death, a prenup is the way to go.
Contact Rosenquist Law Office by phone: 701.775.0654 or by email lawinfo@rosenquistlawoffice.com to set up a free consultation.
*The information contained in this article and on this website is for informational purposes only. This information is not legal advice and should not be relied upon as such.
