The time after you get engaged to be married is exciting. You are planning a wedding and preparing to spend a lifetime with the person you love. A part of this preparation for marriage should be considering whether you should have a prenuptial agreement (“prenup”). A prenup is a legal document signed by both spouses that outlines what will happen to property should the marriage end in divorce. Prenups often have a negative stigma around them, but we are here to eliminate that stigma. The following are common misconceptions about prenups in Alabama.
Signing a prenup means you expect your marriage to fail.
Entering into a prenup before marriage is does not mean that you expect or want your marriage to fail. Insurance is purchased for your home, car, and health in the event there is an unexpected tragedy or undesirable occurrence. A prenup operates in the same way. No one enters into a marriage with the expectation that it will fail. Nevertheless, it is practical to want to have a plan of action in the event that something happens within a marriage and a couple decides to divorce.
Prenups are only for “rich people.”
In the media, you often hear about prenups being signed between celebrity couples. This furthers the idea that only rich and famous people have a need for a prenup. Everyone can benefit from the execution of a prenup. You do not have to be a billionaire to want to protect your assets. Whether you have a billion dollars, or one hundred dollars, your assets matter to you. Alabama is an equitable distribution state. This means that marital property is divided equitably between a splitting couple. Equitable does not always mean equal, however. What a judge deems to be equitable distribution of property, you may not agree with. A prenup can eliminate this dilemma and potential conflict by stating what the division of property will be.
The wealthier spouse receives most of the benefits of a prenup.
Since a prenup is intended to protect the assets of a spouse, many people think that the spouse who is wealthier is the one who is more protected. This is not true. There is no requirement that the spouse with the wealth has to keep all assets in the event of a divorce. A couple comes to an agreement and provisions can be enacted to protect the spouse who has less wealth.
A prenup is always enforced in divorce proceedings.
Yes, couples sign a prenup with the intention that the terms of the agreement will be applicable in divorce proceedings. However, a couple’s circumstances can change, and the prenup could be found to be invalid during divorce proceedings. Both parties must enter into the prenup voluntarily, the prenup must be signed and in writing, and each spouse needs to have the opportunity to consult with an attorney before signing. Generally, courts will try to enforce a legally valid prenup.
When one spouse does not want the prenup enforced, it is up to the other spouse to prove that the contesting spouse entered into the agreement voluntarily at the outset. Additionally, it must be shown that the individual thought the agreement was fair and agreed to the terms in the beginning, even if the other spouse will be receiving more of the assets. Unequal distribution of the assets is not grounds to invalidate a prenup. If one spouse has coerced the other into signing the agreement, however, the prenup will likely not be enforceable during divorce proceedings.
Child support and custody can be decided in a prenup.
The state of Alabama does not allow for child support and custody arrangements to be decided in a prenup. Situations involving the child must be done in their best interest, and there is no way to do that at the outset of a marriage. A judge needs to consider the current situation of each parent and what best suits the needs of the child.
If you are getting married and have questions about a prenup, the attorneys at Massey, Stotser & Nichols, PC are here to help you. We know that a prenup can have a bad reputation, but that reputation is unwarranted. It is smart to be practical about the situation and prepare for all contingencies. Our team of dedicated attorneys want you to feel confident about your future. We are dedicated to ensuring that legal documents are executed properly and are unlikely to be deemed unenforceable in a court of law. Contact us today.