Survey Says Prenuptial Agreements Are on the Rise

Posted October 21, 2013 in Divorce by

Enagement ring and prenuptial agreement

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Prenuptial agreements among couples seeking to get married are on the rise, according to a survey of family law attorneys.

The survey, administered by the American Academy of Matrimonial Lawyers, found that 63 percent of divorce attorneys had noticed an increase in prenups over the past three years.

“I think people have become much more conscious of the availability of prenuptial agreements and there’s a greater emphasis on protecting either premarital assets that may increase in value, or assets that may increase in value during the marriage primarily because of the efforts of one spouse because of their career,” says AAML President Alton L. Abramowitz.

Laws are nuanced and vary by state, but without a prenup, even property already owned by one party prior to the marriage can be subject to distribution if it becomes worth more over the course of the union. Agreements can also cover what type of alimony or maintenance will be given in the event of a divorce, how inheritances and retirement plans get divvied up and who is responsible for taxes, among other provisions.

That gives couples a lot to think about when they consider what should go into their prenup. “Right off the bat, how you are going to be handling day-to-day living expenses? If you’re acquiring a residence, who’s going to own it, who’s going to pay the expenses? What happens to assets upon divorces or death?” Abramowitz lists, among a host of other variables. Every situation is different and a skilled attorney can help make sure all the important details are covered.

 

Antithesis of Marriage

Alton L. Abramowitz

Alton L. Abramowitz

Prenups don’t necessarily set in stone how the asset distribution will play out in a divorce — they can be partially or wholly voided by a judge under certain circumstances, such as if the contract was entered under fraud or duress or is unfair or unconscionable toward one of the parties. To avoid such a situation, both parties should have adequate legal representation when drawing up the contract to make sure everything is reasonable and agreeable.

Some couples may be reluctant to get a prenup because they don’t want to contemplate any circumstances in which their marriage might end. “One of the drawbacks to a prenuptial agreement is it’s the antithesis of the reason people get married,” says Abramowitz. “I love you and I want to spend the rest of my life with you, but I’m not sure I trust you if things don’t work out.”

However, especially in cases where one of the spouses has significantly more wealth or a much higher income than the other, in the event things do turn sour the contract could save the monied party thousands or even millions of dollars. “Think about what your potential exposure is and whether you’re comfortable living with that,” the attorney says. “It depends on how risk adverse you are.”

A key point when creating the prenup is to not try to demand anything that’s unfair and could result in the very existence of the agreement becoming a point of contention in the marriage. “You really need a gentle touch when negotiating a prenuptial agreement,” Abramowitz says. “Hopefully it’s a document you’re going to put in a drawer and never look at again.”

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