1) I have no assets or property now to protect or to designate, do I still need a prenuptial agreement?
Yes, because not only prenuptial agreements protect assets and property before marriage, certain language can be drafted to protect future assets as potentially non-marital.
2) What are the common items prenuptial agreements protect?
Assets and property, inheritance, retirement accounts, trust benefits and distributions, business and partnership ownership to name a few.
3) How can one insure that the agreements drafted are enforceable?
Premarital agreements are not enforceable if:
- Not voluntarily executed by both parties
- The agreement was unconscionable
The unconscionability test is dictated by whether:
- There was full, fair and reasonable disclosure of assets and property to be considered
- There was a voluntary waiver in writing to claim over property already disclosed and excluded
- There was reasonable and adequate knowledge and understanding of the finances and property involved
- Both parties to the agreement had the benefit of legal counsel to obtain independent advise.
4) Can Child support and alimony language be incorporated in the agreements?
Alimony restriction or limiting language may be incorporate as long as reasonable and more or less consistent with elements the court considers in awarding alimony — however child support is statutorily regulated and may not be abrogated through a private agreement.
Here are some the elements the court considers in awarding alimony:
- Financial structure
- Secure employment
- Standard of living
- Length of marriage
- Contributory party
- Physical and emotional factors
- Ability to pay and financial resources
5) How restrictive can the alimony language be?
There is inherent reasonable/equitable presumption attached to any clause in the agreement – but because the alimony calculation and considerations have been statutorily established in DC, one must consider the elements enumerated above very closely in drafting a language that is more or less consistent with the statutory factors.
6) Must there be financial disclosure to a prenuptial agreement? What is incorporated in the financial disclosure?
Yes it must, otherwise the agreement is undefined, indeterminate and incomplete. Any and all assets, properties, accounts, investments, tax returns – the more detailed and complete the financial disclosure the better particularly with property designated as sole and separate property and non-marital.
7) How does one protect business or partnership from marital assets?
Specific language can be drafted to address the particulars of business entity or partnership designating it as sole and separate property prior to the marriage however the extend parties engage and interact with the business during the marriage needs to be also addressed to minimize any martial claims against the business entity.
8) Does all my earning after marriage is considered to be marital property?
Yes, unless portions of income or earnings are designated as non-marital and also secured in the sole and separate account and not commingled during marriage.
9) Is there stigma attached to requesting and having a preputial agreement executed?
Absolutely not. Marriage by law creates financial commingling and the more clear, concise and defined the financial parameters of marriage the better off parties in focusing on the non-financial aspects of marriage.
Refer to Washington DC Prenuptial Agreement page for more detailed information on this subject.