Hammelman Law has always worked with clients to ensure that assets are protected, and that often means carefully taking into account how to protect yourself and children or other family members in the event of separation or divorce. There are considerations such as retirement accounts and potentially previously executed Estate Plans, and then some clients choose to execute their Estate Plans and Marital Agreements contemporaneously, allowing for a full inventory of assets and decisions for where assets should go upon death or divorce.
Coming from a blended family gives me a unique perspective as to how different families may approach things based on whether there are marital children, children from prior relationships, or a combination of both.
Do You Need A Marital Agreement?
Marital Agreements can be made both before or after marriage, and can encompass a wide array of issues. Contrary to popular opinion, Marital Agreements are not just for wealthy families. While they are often used to protect the assets of a wealthy fiancé, there are many other reasons to utilize Marital Agreements.
Children Prior to Marriage
If a couple has children prior to the marriage or contemplated marriage, there may be a difference in how property is intended to be distributed A marrying couple with children from prior marriages may use a prenup to spell out what will happen to their property when they die, so that they can pass on separate property to their children and still provide for each other, if necessary. Without a prenup, a surviving spouse might have the right to claim a large portion of the other spouse's property, leaving much less for the kids.
Financial Rights and Obligations
Whether you have children or not, you may have assets that you want to assure remain your own separate assets. Additionally, you may wish to have a different set of financial rights and obligations depending on the duration of the marriage and whether or not you have children together or one of the spouses stops working to take care of children or other family members.
With a relatively high divorce rate, couples may also choose to retain separate assets and provide for property separation in the event of divorce or separation. This generally makes divorces simpler, easier, and cheaper.
Marital Agreements can also be used to protect spouses from the other spouse's debts.
What Happens Without a Marital Agreement?
If you don't make a prenuptial agreement, your state's laws determine who owns the property that you acquire during your marriage, as well as what happens to that property at divorce or death. (Property acquired during your marriage is known as either marital or community property, depending on your state.) State law may even have a say in what happens to some of the property you owned before you were married.
Under the law, marriage is considered to be a contract between the marrying couple, and with that contract comes certain automatic property rights for each spouse. For example, in the absence of a prenup stating otherwise, a spouse usually has the right to:
Share ownership of property acquired during marriage, with the expectation that the property will be divided between the spouses in the event of a divorce or at death
Incur debts during marriage that the other spouse may have to pay for, and
Share in the management and control of any marital or community property, sometimes including the right to sell it or give it away.