|
The basics of prenuptial agreements |
|
|
|
By AHMED SHAIKH, Guest Columnist
|
|
If you are married or are about to get married, you understand the preparations involved in planning a wedding. Finding that gorgeous dress, meeting with caterers, and double-checking to make sure that “close” friend of the family that you haven’t seen since you were in diapers is on the guest list are all items on the to-do list.
With all the excitement, the last thing you probably want to think about is how to plan for marriage that might fail. But should you ask for a prenuptial agreement?
It should be obvious that usually asking for such an agreement while planning your wedding may not sound nice. Most people do not do it or will not do it. Marriage is a relationship of trust. That does not mean however that married couples do not sign agreements, they do all the time. For example, in Islam, the couple agrees on a specified “maher,” or the gift the bride gets from the bride-groom.
But when should a person seriously consider discussing with their future spouse about the idea of each getting their own lawyer in advance?
Of course the more complicated the family history and the more a person owns, the more there may be to protect. A young couple just starting out is unlikely to consider hiring a lawyer to protect interests that do not exist yet. A woman entering into her second marriage with children, businesses and property will need to seriously consider it.
Community property, generally speaking, is property that is brought into a community (marriage) through the skill, labor or efforts of a community member. This property is owned equally by members of the community.
California is a community property state, but most people end up owning their property jointly. Joint ownership is generally a bad idea for a range of reasons outside the scope of this article. However community property is a great way to own property, so long as both people understand what they are doing. There may also be good reasons to own property separately.
While a couple can include in signed agreements that the husband must provide his wife with lobster every third Wednesday, for example, don’t expect these kinds of things to be enforceable in court. There are a wide range of clauses that appear in agreements that judges do not want to have anything to do with. However, there is no harm in writing these things down.
To whatever extent possible, couples should always agree to have their problems resolved outside court. The Islamic Shura Council has a process for resolving disputes that couples can utilize. Courts are a poor choice for resolving private disputes, since they are not private. They are expensive and subject people to humiliation.
There are a couple of areas the state will want a say in. The first is the welfare of children and the second is who goes on welfare. This means courts may have a say on the issues of custody and support, regardless of any previous agreement between the couple. Do not expect any agreement to definitively resolve these issues.
If you are about to get married but want to plan for a possible divorce, you have a prenuptial agreement. If you are already married and you want to talk to your spouse about planning for a possible divorce without actually asking for one, you want a “postnuptial” agreement. The two are otherwise identical concepts.
Any sane person would hope their marriage succeeds, and when done properly, prenuptial and postnuptial agreements are expensive. However for some people, there are rights that are at stake that go beyond the relationship, making it well worth it.
|
