Whether you are engaged or already married, no couple want to discuss, let alone think about the two big D’s – death and divorce. While these topics may be unpleasant to discuss, these dialogues are positive opportunities to look after the future welfare of your spouse, learn about the consequences of divorce and strengthen marriage bonds.
While no couple can predict the future, even those who overcome the statistical odds of divorce there is a real certainty that one spouse will outlive the other, whether that happens later in life or prematurely. In either of these tragic events, a martial agreement can give couples peace of mind concerning the uncertainty surrounding their financial future.
What they do
A marital agreement can offer security and manage expectations by specifying who gets rights to what property in the event of the dissolution of the marriage or death of a spouse. In short, marital agreements create fiscal certainties in an uncertain future, by defining things like:
- Property rights – who gets what property rights during marriage, or in the event of death or divorce.
- Debt liability – who is responsible to pay for debt(s) during marriage, and how it is transferred in the event of death or divorce.
- Spousal Maintenance (commonly referred to as alimony) issues – what if any alimony is to be received in the event of death or divorce.
- Attorney fees – who will pay any legal fees if a couple has to go to court in the event of a divorce, separation or annulment.
However, there are some important limitations, such as an agreement cannot reduce or eliminate any future child support responsibilities of either spouse. Nor can it punish a spouse for initiating a divorce, or restrict lawful remedies for victims of domestic violence. Waivers of spousal maintenance and attorney fee allocations can even be set aside if severely unfair. If an agreement is made with any of the above limitations, then it can be rendered unenforceable.
Who they help
Marital agreements are not just for those who are entertaining marriage. In fact, an agreement can be drafted whether you are engaged, or already married. A marital agreement only becomes effective once married or for those who are already married. However, if you are married, they cannot be prepared for couples who are contemplating divorce, in that circumstance the solutions might only include legal separation or divorce.
Prenuptial. This is for couples who are intending to marry but haven’t yet married and are looking to resolve many financial issues during and upon a potential dissolution of their marriage.
Postnuptial. This option is beneficial for couples who for whatever reason didn’t think about it, or were simply unable to get a prenuptial agreement put together in time. It can also be suitable for couples who feel that current circumstances warrant a marital agreement – such as coming into a large inheritance, the creation of a business or a change in liabilities for either or both parties.
Separation Agreement. To be clear, separation agreements are not technically “marital agreements” under the law, but are rather documentation of the couple’s settlement upon legal separation or dissolution of marriage. The only other option is the typically cumbersome and costly process of trial before a judge or arbitrator.
When prepared correctly, marital agreements give peace of mind to a couple entering or continuing. When agreements are incomplete, missing information or contain the wrong language, room is left for agreements to be contested in the future by an unhappy former spouse. Thus, it is recommended to consult an attorney to avoid mistakes and make sure the agreement reflects both spouses’ needs, wishes, and preferences to resolve potential problems before they can even arise.
James Garts leads the Robinson & Henry family law practice in Denver. With over 13 years of experience, James oversees a dedicated team of attorneys and support staff. James has helped many couples strengthen their marriage through enacting mindful marital agreements, as well as navigate clients through the emotional circumstance of separation agreements.