You probably didn’t have prenup alimony laid out before your marriage.
But if you did (or you’re planning on it), you’re one of the very few.
According to The Journal of Legal Studies, the number of people who have prenuptial agreements is crazy low.
For first time marriages, it’s only 10%.
For 2nd marriages (or more), it’s only 20%.
But if so FEW people are doing it, why should you even consider it?
Read on to find out why alimony is something you should consider placing in your prenuptial agreement.
What Is A Prenup Agreement
A prenuptial agreement is a written contract created by two people before they are married.
A prenup typically lists all of the property each person owns (as well as any debts) and specifies what each person’s property rights will be after the marriage.
Some couples do not understand the benefits of getting a prenup contract.
Others fear a prenup will result in an unfair settlement in the event of a divorce.
For example, let’s assume I met my wife in her senior year of college, but we got married two years after she graduated. And now, my wife wants a divorce.
If she has $80,000 in student loans, I would want to sign a prenup before marriage so that, if we divorced in two years, I would NOT be responsible for $40,000 of her student loan debt.
And on the other hand, if her parents have built a $5M rental portfolio and they are passing it down to her, I would sign a prenup marriage agreement saying that, if we got a divorce, then I would not have the rights to half of that portfolio.
The prenuptial agreement will establish what assets are to remain separate in the event of a divorce.
This is an important factor when entering a 2nd or subsequent marriage. There may be children from prior relationships and inheritance issues to contemplate.
If you remarry when you’re 45 and you have a 15-year-old child, you may want your child to inherit anything you have instead of your new spouse. This would be important to distinguish in your prenuptial agreement.
If you divorce without a prenup, then you may lose half of everything you have built, even if you planned on passing that down to your kids. And NOT having to battle over assets makes for a much more affordable divorce.
To REALLY make things run smoothly, you should print off a mutual separation agreement and run through this to see how you’d want to split things up while the going is still good.
Laws For Marriage Prenups
Typical areas covered in a marriage prenup agreement include the rights and responsibilities of each person during the marriage.
The prenup contract will give a full disclosure of each person’s property and money they are bringing into the marriage.
A marriage prenup will also state how any money and property the parties acquire during the marriage will be divided in the event of a divorce.
Georgia law establishes prenuptial agreements as enforceable under Scherer v Scherer 249 Ga. 635, 292 S.E.2d 662 (1982). That opinion states that enforceability of a marriage prenup is based on:
- Whether the agreement was obtained through duress, fraud, or mistake or by misrepresentation or nondisclosure of the material facts.
- Whether the agreement is unconscionable.
- Whether there has been a change in circumstances or facts between the time of execution and time of divorce that make its enforcement unreasonable or unfair.
Those criteria are what a court will use in determining whether the prenup contract is enforceable. When preparing the prenup before marriage, you will want to make sure it follows a format that establishes its validity.
The costs of a prenup agreement are minimal compared to the potential losses you could incur in a divorce.
A Checklist for Getting a Prenup
The Georgia Domestic Relations Code sets forth guidelines for establishing a prenuptial agreement. These factors are necessary for the prenup contract to be valid:
- It can not interfere with the rights of creditors, prior purchasers, or third parties.
- It must be in writing and include the signature of at least two witnesses.
- It must be entered into without coercion and made willingly by both parties.
- It must fully disclose all assets of each party.
- It must be properly recorded and filed with the court.
The written prenuptial agreement needs to be complete in advance of the wedding so both parties may have it reviewed by a prenup attorney.
There needs to be ample time for any recommended changes to made and signing done prior to the wedding.
I know you’re not thinking about it now. Why would you be? You’re getting married. But being on the same page with how the divorce should fairly go down is how to have an amicable divorce.
Importance of Prenup Alimony
Including alimony in a prenuptial agreement is a way of protecting your financial standing in the event of divorce.
It guarantees that either you or your spouse will receive a minimum amount of alimony after divorce for a specific period of time. Alternatively, it may guarantee that neither party ends up paying alimony in a divorce.
Here are some examples of prenup alimony arrangements that you can use:
- If separation occurs after five years or more of marriage, then one spouse will receive alimony in the amount of $1,200 per month for a period of three years.
- If separation occurs after ten years of marriage, either spouse may request alimony in an amount up to a total of $25,000.
- If one spouse is not working at the time of divorce (you’re divorcing a husband that won’t work) than they may receive a one-time lump sum payment of $15,000.
- If there is an inequity in education, then a spouse may request up to $50,000 for rehabilitative alimony for the purpose of obtaining education or training to re-enter the workforce.
- That there will be no spousal support or alimony for either party in the event of a divorce.
You should be thinking about (and including) your alimony in prenup conversations with your potential spouse.
But just be aware that when you file for divorce with children, alimony laws will not allow you guys to agree on child support alimony. Usually, you’ll have to consult custody lawyers when there are children involved.
If you and your spouse have children during the marriage their support arrangements will be part of the divorce proceedings.
Amendments can be made if a change in circumstances makes the alimony agreement in a prenup unreasonable.
These amendments are usually called prenup alimony waivers.
Prenup alimony waivers need to be in writing with each party signing before witnesses. These amendments should be reviewed by each party’s individual divorce attorney or alimony lawyer prior to signing.
If you are entering into a prenuptial agreement, you should address alimony as part of that contract. A prenup and alimony go hand in hand.
If you have a prenup with no alimony, that means it will fall under the laws of the state where you divorce.
We see a lot of couples who have failed to include alimony in prenup contracts and it REALLY hurts one of the spouses each time. Obviously, the other one ends up pretty well off.
Requirements For Marrying A Non Citizen
If your fiance is not a citizen of the United States, there are specific obligations and requirements that you must comply with.
The Department of Homeland Security requires you to sponsor your immigrant fiance on an Affidavit of Support. This is an important consideration when signing a prenuptial agreement.
The Affidavit of Support requires the spouse who is a U.S. citizen to commit to a ten-year contract with the U.S. Government. This contract is an agreement to support the immigrant financially for ten years and divorce will not free you from that obligation.
These requirements make it important for special care when preparing a prenuptial agreement. If the wording is not proper to meet government obligations the prenup may be invalid.
You should definitely consult a prenup attorney to make sure that you set this up properly.
Signing A Marriage Prenup Agreement
Marriage prenup agreements provide safety for those entering a marriage. This is especially important when either or both parties have a substantial amount of premarital assets. This makes the property settlement go smoothly in the event of a divorce.
Inheritance to children from prior relationships is an important consideration. This is easily handled in a prenuptial agreement when this is your second or subsequent marriage.
Adding a clause regarding prenup alimony puts you in charge of whether you or your spouse receives alimony. If it is not mentioned in your prenup agreement, the laws of the state you are in when divorcing will govern the matter.
Here at Hive Law we focus on virtual divorces, making it convenient for you to meet with us from home, work, or even when on vacation. Contact us today with any questions you have or to set up a consultation.