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Getting remarried: Do you need a pre-nup?

Published On: May 31 2013 10:21:20 AM CDT
Updated On: Jul 24 2013 10:28:58 AM CDT
Wedding, engagement rings

Cathy Kaplan/SXC

By Sheri Hack, THELAW.TV

Many couples entering into second marriages are realizing that pre-nuptial agreements ("pre-nups") are not just for the rich and famous. Pre-nups have become popular trends. Making a decision to enter into a pre-nup is a personal one. Both parties must agree, and the decision should be considered carefully.

Pre-nup agreements are contracts that are entered into by two parties prior to their marriage. The main purpose of the agreement is to provide for how marital assets will be divided and also address how debts are paid if the couple divorce. The pre-nup agreement may also contain provisions addressing division of assets upon the death of a spouse, spousal support, child support and custody and guardianship issues.

If you have a career or give up one to stay at home to take care of children, or you have accumulated substantial assets or possess family heirlooms and keepsakes of sentimental value to you, a pre-nup protects your possessions and your money.

Arkansas family law attorney Damia Rolfe says "that by the time parties enter into second marriages, they are in different financial places and may have acquired assets from first marriages that they want to protect with a pre-nup."

According to Rolfe, it is important that both parties voluntarily enter into a pre-nup and read and understand the agreement so that modifications can be made to reflect mutual understandings before they sign it. By doing so, the parties will avoid any surprises later.

Many people view pre-nups negatively and some consider asking a partner for a pre-nup selfish. Rolfe acknowledges that pre-nup agreements may be "frowned upon and thought of as an invitation to Plan B." Family members may question why the parties are contemplating divorce before they are even married.

While statistics reflect that more than 70 percent of second marriages end in divorce, Rolfe says that "in reality most couples anticipate that they will remain married" and use a pre-nup as a tool to address divisions of property in the event that the marriage does not work out.

Since there is no sure way to predict whether you will be one of those divorce statistics, experts suggest that embracing an attitude of generosity toward your spouse and expressing wishes to share your life and possessions "until death do you part" increase your chances of a successful marriage.

As an example, a study conducted by the National Center for Family and Marriage reveals that couples who share their bank accounts are less likely to divorce as opposed to couples who do not share and have a 145 percent divorce rate. On the other hand, if you feel the need to keep your possessions separate and protect your accumulated wealth or your family wealth, cohabitation may be the answer.

Most states allow cohabiting couples to walk away from the relationship without having to worry about dividing up assets and determining who pays for debts.

Should you decide to opt for a second marriage and a pre-nup, there are some limitations to consider:

--Parties are required to disclose all their assets

--Some states do not allow pre-nups to place limits on spousal support

--Child support cannot be limited if the amount violate state statutes

--The court may decide that the agreement is unenforceable if there is fraud, duress, coercion or one spouse is left without any assets and destitute

Absent a pre-nup agreement, if you live in a community property state such as Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington or Wisconsin, state statutes provide that marital assets are divided equally between the two parties.

All other states follow the equitable property division rule of law, which means that marital assets are distributed in a fair and equitable manner.

Reality TV star NeNE Leakes has expressed her desire to have a pre-nup in place before heading down the aisle for a second time with her ex-husband TV Reality star Gregg Leakes. In an interview with USA Today, NeNe said "A lot of people have pre-nups. I don't know why my situation is any different than anybody else's." NeNe receives $1 million, plus bonuses as a cast member of "Real Housewives of Atlanta." She is also star in two network shows, NBC's "The New Normal" and "Glee" on Fox.

According to financial analysts at the Institute of Divorce, it is important to consider a pre-nup to settle property issues before entering into a second marriage when you have substantial assets or have children from a prior marriage to prevent litigation disputes against your estate when you pass away. Florida family law attorney Ron Newlin agrees that how many assets you have is one of the most important factors in choosing to have a pre-nup in place. However, if protecting your children's inheritance is your sole purpose for entering into a pre-nup, Newlin explains that making a will is a "much better" and "cleaner" choice.

Newlin explains that the enforceability of the pre-nup agreement is going to be at issue and largely dependent on the judge presiding over the dissolution matter.

The judge will be looking at such factors as whether fraud was committed by one spouse by failing to disclose assets, whether one party was forced or coerced into signing, the fairness of the terms and any overreaching. Newlin says that "having a pre-nup which voids itself after two years of marriage or the birth of a child is more likely to be enforced by the court than one that never voids itself, and after 30 years of marriage, the husband gets most of the assets."

Making the decision to enter into a pre-nup is an important one that should be discussed with a family law attorney. The attorney can explain the basic provisions and issues that should be addressed and answer any questions that you may have.

It is recommended that each party hire their own attorney to review the agreement prior to signing to make sure their interests are fully protected.

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