Premarital Agreements: What to do before You Say “I Do”

A friend of mine once told me the best advice she ever received in picking a life partner: “Never marry someone you can’t stand being divorced from.” For so many reasons, this rings true. While premarital agreements often get a bad rap – words like “unromantic”, “distrust”, and “greed” come to mind – the reality is, a carefully drafted premarital agreement can help create a culture of financial openness in a marriage, as well as provide a framework for an amicable untangling of the parties, in the unfortunate event of divorce.

 Premarital agreements in Nebraska are governed by the Uniform Premarital Agreement Act. Most importantly, a premarital agreement by definition is a contract entered into by prospective spouses in contemplation of marriage, and is to be effective upon marriage. As recently as 2016, the Nebraska Supreme Court reaffirmed the court’s position that Nebraska law does not allow postnuptial agreements unless such agreements are concurrent with a separation or divorce.  All of this is to say that, if you are considering a premarital agreement, it has to be made before the wedding.

A premarital agreement can outline the disposition of pre- and post-marital assets in the event of divorce. It can also set expectations for things like alimony and distribution of the parties’ debt. A word to the wise: give yourself and your partner more than a few days to consider the document. Allowing ample time to generate a document that suits both parties’ needs will increase the likelihood of success by its terms, and allow for full, open and honest communication for everyone involved.

Keep in mind that premarital agreements don’t just deal with divorce; the document can also help govern the distribution of your assets in the event of your death. This is particularly helpful for families formed by a second marriage. Consider a home owned by one spouse prior to the second marriage. If that spouse dies during the marriage, does the surviving spouse get the home? Does it pass to the deceased spouse’s children or beneficiaries? Or is it sold, and if so, who receives the payout? In the case of second marriages, having a comprehensive premarital agreement done before marriage allows the parties to preserve their estate planning options down the road, and to foster harmony in the blended family.

Thinking of divorce before getting married may seem unromantic, but marriage is a contract on multiple levels. Parties promise to “love, honor, and cherish”; they also amass assets, debts, and dependents. In the event of marital discord, legal documents such as a premarital agreement establish the rights and responsibilities of each party to a marriage. Mitigating the emotional and financial points of contention by defining each person’s expectations and boundaries up front can save a great deal of money, time, and pain down the road.

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