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Prenuptial agreements, property division and divorce

Although prenuptial agreements can be and are often used to address divorce-related issues such as alimony, child support, child custody and parenting time — most people in Tennessee associate “prenups” with property division and people who have a lot of money. While that’s not an entirely inaccurate perception, it does provide us an opportunity to answer two questions we are frequently asked with respect to these agreements.

First, what is prenuptial agreement? In essence, it’s nothing more than a private contract between two individuals. As with all contracts, prenuptial agreements should be carefully drafted and must also satisfy certain “contract formation” requirements in order to be enforceable.

In the case of a prenuptial agreement, the negotiations and contract should be completed well in advance of the wedding date — a month is usually sufficient but the sooner the better. In addition, both prospective spouses should be represented by their own attorneys during the process and both must fully and completely disclose all of their assets and debts to each other.

Second, do you need one? While property division laws in Tennessee and other states are fairly clear on defining “separate property” and “marital property” — there’s almost always some room for debate in the absence of a prenuptial agreement. Because this can needlessly complicate the divorce process (which costs a great deal more than the cost of a prenup), they do make financial sense for most people.

The bottom line: If you are planning to get married, the potential benefits offered by a well-drafted, enforceable prenuptial agreement make it worthwhile to speak with an experienced family law attorney about this versatile legal tool.

Source: Reuters, “The Power of the Prenup,” Lauren Young, June 5, 2012


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