Many think it morbid or crass to consider a prenuptial agreement, while others recognize the wisdom of, and even the inherent fairness in, protecting and preserving assets which you alone accumulated prior to marriage. Prenuptial agreements are fair and equitable because they ensure that premarital wealth will still be there for you in the event of divorce or, if you stay married, to pass on to your children or heirs from a prior relationship.
As a trial lawyer who specializes in divorce work, I can say with confidence that having a prenuptial agreement is no more morbid, crass or unfair, than having a good will, trust documentation, or power of attorney prepared by an estate planning attorney. Just as there is nothing morbid about planning for one’s inevitable demise, it is also wise to consider that, statistically, at least half of us will experience the divorce courts. Like estate planning, a prenuptial agreement is simply another strategy for smart and fair asset protection.
In my work, I am often frustrated by the absence of prenuptial agreements, or even more, by shoddy, thoughtlessly-prepared agreements which do not thoroughly address certain key elements. More on this later, but first the basics:
In a divorce trial involving property, the judge is tasked with three things: (1) characterizing property as marital or separate, (2) valuing the marital property, and (3) equitably distributing the marital estate. Prenuptial agreements are designed to guide the court on (read: simplify) the first and third tasks, characterization and distribution of property.
Maybe you don't!
I would say that 97% of all divorce cases end up settling out of court. And lawyers can be expensive!
And the Alaska Court System offers the Family Law Self-Help Center, as a free public service to divorce litigants who want to do this on their own and are able to deal fairly with each other to work out custody and property issues amicably. The staff at the Center are lawyers for the most part, and they provide very helpful assistance in navigating the bank of forms (also available online) necessary to process your divorce.
However, the staff at the Center will be the first to tell you that they are unable to provide legal advice. So, in a sense, you're charting these waters on your own, and what one of you considers to be "fair and equitable" might not be in the eyes of the law.
I can't count the number of times I've had the following discussion with a prospective client: "My spouse wants to split things 50-50. What could be fairer than that? Neither of us is getting more, or less, than the other?"
The law of Alaska answers this question, and provides that the court can consider a number of factors in deciding what is "fair and equitable", including disparity in income, health and age of the parties, length of the marriage, etc.
I've told many people that they may not need a lawyer. The choice is yours. If you would like to learn more about whether your case can be resolved without representation, please give me a call.
Doug Perkins, at Hartig Rhodes LLC, has an active family law practice, including prenuptial agreements and adoptions, and cases involving divorce, property, child custody and support, and domestic violence.