Your Prenuptial Agreement is Junk! Part 1

My what?  It is?  Why?

Perhaps I should back up and explain a little.  If you spend much time watching TV or follow the dramatic lives and divorces of celebrities, you’ve undoubtedly heard of prenuptial agreements (what some people call a “prenup”) and the problems they can cause.  There are a lot of misconceptions about these agreements, and I’m going to try to clear one of two of them up for you.

What a prenuptial agreement can do

A prenuptial agreement is a contract between two people in anticipation of marriage.  This document allows the couple to decide for themselves how their property will be divided upon the termination of their marriage.  The prenuptial agreement can also set or waive alimony or declare who shall pay the attorneys fees and court costs of the divorce.

The courts in Tennessee have upheld these agreements over and over stating that prenuptial agreements benefit the public (a detailed history of prenups may be the subject of a future post).

These contracts can be very useful, as the parties can agree that certain investment accounts will stay with one party, or perhaps family heirlooms will be retained by one spouse, pensions will be protected from division, or any other number of property situations can be resolved.

On the other hand, the parties can agree that certain items will be treated as marital property in the divorce.  For example, suppose the wife already owns a large house that the couple intends to live in.  A provision could be added to the prenuptial agreement that the house will be transferred to both their names and the value of it will be divided in some particular way if the parties seek a divorce.

What a prenuptial agreement can’t do

OK, that all sounds great, why would I dare say that your agreement is junk?  I say that because there are some important limitations on prenups.  The biggest is that any provision in the agreement that seeks to determine the custody of the children or set child support is void.

The family courts in Tennessee jealously guard their duty and right to protect the children of divorcing parents.  While it is true that the couple can agree on a parental schedule as part of an irreconcilable differences divorce, such an agreement must be reviewed and adopted by a Judge.  The court will always reserve to itself the final say in who will be charged with caring for the minor children, and as a result, anything in a prenup that involves a parent abandoning his right to parent his children will be ignored.

This is important because the most difficult, lengthy, and costly battles in a divorce often involve the custody of the children.  In cases like this, no amount of planning ahead with a prenuptial agreement will streamline the dissolution of your marriage.  If you are relying on such an agreement as a quick way to rid yourself of a difficult spouse, your faith is misplaced.

Finally, as mentioned above the parties can predetermine or avoid an award of alimony.  The courts allow this for two reasons:  First, in modern times women are much more often receiving advanced educations and entering the workplace.  In fact, it’s becoming harder and harder to find a June Cleaver.  Second, divorce has become so commonplace that it may make perfect sense to predetermine as many issues (including spousal support) as possible.

Tennessee has recognized one major exception, however.  If you’re so evil that your master plan is to leave your spouse penniless and on the street, the court will likely help you see the error of your ways.  In fact, what will probably happen is you’ll find your prenuptial agreement trashed and the court will set alimony in an amount the judge thinks is appropriate.

Of course, the problem is there are no guidelines or formulas to follow in these cases, the courts are forced to consider each case upon it’s own merits.  This could potentially lead to a longer battle than if there had been no prenup at all.  The first battle will be over whether or not the agreement is valid, and if it’s not you’ll have a whole new fight over how much the alimony should be.  Therefore, if you’ve got a prenuptial agreement that will leave your spouse flat broke, it’s probably junk!

What you need to know

Don’t let me discourage you.  As I wrote above, these agreements are definitely looked upon favorably in Tennessee.  In many cases it makes perfect sense for the parties to agree in advance how their assets will be divided if (despite their best efforts) the marriage should fail.  However, a good prenuptial agreement must be written and executed carefully, and the advice of a lawyer may save you a lot of trouble later.

This isn’t strictly for the rich and famous, if you have even modest assets that you’d like to protect through your marriage, contact me to find out how I can help you craft an agreement that will save you the burden of a protracted battle in the future.