Prenuptial Agreements

More and more couples are entering into prenuptial agreements to address at least some of the issues they may face in the event of a future separation or divorce. Sometimes, those agreements primarily assure that separate property (including the property each party brings to the marriage) will remain his/her separate property following a divorce, including any appreciation in value of that separate property. Even as to that, I generally recommend provisions which are more creative and, I believe, fairer than the standard provisions found in most prenuptial agreements, including ways of dealing with the appreciation in value of one party’s separate property caused by the contribution of marital earnings or the separate property of the other party(such as toward capital improvements or the reduction of mortgage principal).

Prenuptial agreements can also address other potential issues, including maintenance (spousal support) and estate waivers, either total or partial.

I also often recommend the inclusion of a “Dispute Resolution“ provision (as I do with separation agreements), designed to keep parties out of court in the event of future disputes surrounding a separation or divorce.

If I work with a couple as a mediator (rather than as one party‘s attorney) in connection with a prenuptial agreement, both parties should consult with independent counsel, as it is important for both parties to be independently represented to assure the enforceability of the agreement.