Sure, we never want to envision our lives turning out like Taylor Swift’s “Blank Space” music video, but the truth is, love could very well “be forever or go down in flames.” That said, a messy breakup is not the only reason couples may choose to get a prenup. Creating an ironclad prenup is necessary for many couples to keep individual, family, or business assets safe. The recently divorced power couple, Tom Brady and Gisele Bündchen, prove that a strong and carefully laid out prenup can make an uncomfortable situation uncontentious and run smoothly.
On the other hand, for those of you who think, “I don’t have many assets, I don’t need a prenup; after all, prenups aren’t romantic,” well, think again because family law is an area of law where judges have broad discretion, and you can never be too sure what you will get. A prenup can still be helpful to couples with fewer assets as it can keep the costs of divorce low and ensures each party is made financially whole before things get messy.
Prenups In North Dakota
North Dakota is one of the many states that has adopted the Uniform Premarital and Marital Agreements Act (UPMAA). UPMAA Chapter 14-03.2-01(5) states that a premarital agreement is an “agreement between individuals who intend to marry which affirms, modifies, or waives a marital right or obligation during the marriage or at separation, marital dissolution, death of one of the spouses, or the occurrence or nonoccurrence of any other event.” The term includes an amendment, signed before the individuals marry, of a premarital agreement. Okay, what? – maybe not everyone is as comfortable as Elle Woods using legal jargon in everyday life.
In plain English, a prenup is a legal contract between two engaged individuals that establishes exactly what will happen to their property, finances, and other assets/debts in the event of a divorce, death, or some other specified event.
Notably, couples who are already married can also enter into marital agreements outlining the division of their property. The main difference is that prenups become effective upon marriage, while marital agreements (sometimes known as postnuptial agreements) become effective upon signing since the parties are already married.
5 Must-Dos For An Ironclad Prenup
UPMAA chapter 14-03.2-08 outlines important factors that courts will consider when evaluating whether your prenup is enforceable.
- Each party must sign the written prenup voluntarily and absent of any duress;
- It is highly recommended that each party have their own independent counsel; If, however, your prospective spouse elects to forego their right to an attorney, then you need to make sure they understand the prenup and understand that they are waiving their right to be represented.
- There must be a good faith and adequate financial disclosure of assets and debts;
- Include a “notice of waiver of rights” or an explanation in plain language of the marital rights or obligations being modified or waived by the agreement. This is especially true when one party is not being represented.
- Allow the prospective spouse adequate time to read through and negotiate the prenup. The more time your prospective spouse is given, the more likely a court will enforce the prenup. Think of it this way, your prospective spouse needs time to read the document, figure out if they want to hire an attorney, go out and look for an attorney, hire an attorney, and have that very busy attorney look through the document and negotiate. Remember, it has to be fair, so the more time your spouse has to review the document, the less likely it is for a court to find coercion or duress.
Refusal To Enforce
UPMAA chapter 14-03.2-09 tells us that it is important to keep in mind that a court may still hold the power to refuse enforcement of a term within the prenup (or marital agreement). This is especially true when there is an unconscionable term, when a material change of circumstances has occurred since signing, or when there are terms regarding child support that would adversely affect the child. Important to note is that a prenup (or marital agreement) that outlines parental rights and responsibilities is not binding on the court.
In short, there are many nuances to consider when drafting a prenup (or marital agreement). Let the attorneys at SW&L provide thoughtful advice and guide you through the process so you can focus on the fun stuff; the wedding!
Contact the SW&L family law team at 701-297-2890 or email us at: firstname.lastname@example.org.
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