Important Considerations for a Probate Attorney Regarding a Prenup or Postnup Agreement
With two-career power couples, late in life marriages, and multiple unions more the exception than the rule, the need for postnup and prenuptial agreements is on the rise. Most people see these as protection during unions where there’s an uneven power dynamic or something that celebrities engage in to protect their millions. However, an experienced probate attorney will tell you that these vital documents are necessary when entering into almost any marriage union.
What’s the Difference Between a Postnup and a Prenup?
Obviously, the main difference between a prenup and a postnup is that one is written before a marriage takes place and the other is created after. While many people can understand the need for a premarital agreement about the division of property and other assets, postnups are a little more difficult for non-lawyers to understand?
Both types of contracts seek to protect individual assets in the event that a marriage ends in divorce or one partner dies. However, situations change, as do regulations and statutes from state to state. This means circumstances that were true when a prenup was created may no longer be valid.
Case Scenarios: When Can a Postnup or Prenup Work Best?
Many people think that a prenup takes the romance out of a marriage or dooms it before it even begins by assuming that it won’t last forever. Rather than making assumptions about the strength of a relationship, it can actually strengthen a marriage by tackling real issues up front that can lead to divorce later, such as misunderstandings about finances.
In fact, disagreements about money are second only to adultery when couples give a reason for their split.
Prenups are a good idea if one or both partners are already established in their careers or there are children from previous relationships that need to be provided for financially.
But, when is it time to consider drawing up a postnup? After all, you’re already committed, so isn’t it too late to worry about who should get what if you split?
For one thing, they’re good to consider in hindsight., Maybe a prenup didn’t seem necessary or the question of needing one was taking the wrong way and bad feelings developed. However, once the vows have been taken, things can change significantly.
A postnup can be used to calm concerns if one party is considering backing out of the marriage. It can helps resolve concerns around change in financial circumstances or prospects, such as if one party gets an unexpected inheritance.
A couple deciding to have children together can also change the equation, especially if one or the other partner already has children from a previous relationship. Perhaps the couple is launching a business enterprise together and need to decide how to proceed in the event that the business survives but the relationship doesn’t.
Post and prenups also make creating wills or trusts easier, and they can save lots of time, stress, and money in the event that there is a divorce or separation.
Any of these situations, as well as others that are unforeseen, are cause for you and your partner to talk to a probate lawyer in Las Vegas about your own unique situation.
What Your Probate Attorney Should Include in Your Legal Document
On the surface, legally binding contracts need only include an offer, consideration, and acceptance. In other words, a mutually beneficial agreement between two parties who are of sound mind and legal age.
However, there’s a little but more to it than that.
Minors aren’t allowed to enter into contracts, and the consideration must be for a legal purpose. For example, you can’t create a legally binding contract inducing someone to commit a crime or surrender their own legal rights, such as when a parent forbids a child to marry or move away from home when they’re of sound mind and legal age. Contracts cannot be signed under pressure, threats, or duress, either.
No two relationships are the same. However, there are certain considerations that should be addressed when writing any prenup or postnuptial agreement.
1. Property considerations: This is one of the main points of contention, especially if one or both parties own separate properties that they i8ntend to keep after their marriage or one partner is moving into the premarital estate of the other.
2. Responsibility for debts: In most cases, one partner is not responsible for the debts of the other if they are incurred before the union. However, that varies from state to state, and it can also depend on the type of debt.
Not all partners are forthcoming about their level of debt before marriage. A post or prenup can help you avoid such surprises and their consequences. It can also legally solidify agreements, such as when one spouse offers to pay off a student loan or outstanding mortgage, or if one person offers to finance a business venture or put them through school.
3. Responsibility for children: It’s a reality today that many couples have children from previous relationships. Naturally, the former partner or their children will become concerned about what will happen to the kids when the other parent remarries.
4. Tax liabilities: Tax planning is complicated under the best of circumstances. The more things factor in, the more complex it becomes. For example, if a spouse has previous obligations, such as a defaulted student loan, how will that impact your filing? Will you file separately or jointly, and which deductions will you take?
5. Business considerations: This can be affected if you open a business together but it can also impact you if you live in a community property state. It’s important to determine who owns the business before, after, and during the marriage. You also need to solidify what will happen to it in the event of a breakup.
Not all considerations relate to what will happen if you split up. Many of these types of contracts address what will happen during the course of the marriage as well. For example, a prenup can lay out who will be responsible for child care in the event that both partners work full time. A postnup can address the same concerns in the event that a childless couple decides to adopt after they’re married or a surprise pregnancy occurs.
Other things to include could relate to budgeting, who pays for which bills, how to prioritize spending on big budget items, and how to construct joint savings or investment targets.
Finding a Qualified Estate Planning Attorney in Las Vegas
Any legal document is only as good as its wording and construction. That’s why DIY documents are fine if you want a general overview or a template of how a contract should be written.
However, legal documents should never be one-size agreements. Everyone’s situation and needs are unique.
If you want something that’s airtight and precise in its detail, it important to find a knowledgeable probate attorney in Las Vegas with experience constructing prenups and post nuptial agreements.