Prenuptial Agreements
Prenuptial Agreements--protecting your assets before divorce
Contrary to popular belief, prenuptial agreements aren’t only for the rich and famous. A prenuptial agreement (also called a premarital or antenuptial agreement – just to make things more confusing!) can be very useful for many couples, especially those who have had time to accumulate any assets at all and for those with children from previous relationships.
Generally, in the event of a divorce, a Mississippi court will divide “marital assets” between husband and wife in a fair and equitable manner. Property acquired or accumulated during the course of the marriage is considered “marital.” Inheritances and the assets that each party owned prior to the marriage are usually considered “non-marital” property which will be set aside to its original owner in a divorce.
The line between marital and non-marital property can get blurred though if it increases in value during the marriage. Should that increased value be considered marital property? The original owner sometimes risks losing his or her pre-marital property in the divorce. The line is further blurred when you mix pre-marital property with marital property during a marriage or use pre-marital property, such as a home, for your new family’s use. A prenuptial agreement can fix this situation.
The prenuptial agreement is essentially just a contract. Pursuant to Mississippi law, it must be in writing to be enforceable in court. The provisions of the agreement must be fair (which does not necessarily mean a 50/50 split) and each party to the agreement must disclose all of his or her assets to the other prior to signing the contract. Another and important aspect is that each party should be represented by their own attorney.
Usually, each party agrees that the other’s non-marital property and any increase in value to that property will be awarded to its original owner in a divorce. This can include real estate, investment accounts, retirement accounts, businesses and more. In doing this, children from a previous relationship and family businesses will be protected.
The agreement can address many other questions such as payment of certain expenses and debts. If it is not unconscionable, the parties can even use a prenuptial agreement to waive the right to claim alimony in the event of divorce. However, child custody and child support cannot be legally determined in a prenuptial agreement.
Although it may be a touchy subject to broach with your betrothed, a prenuptial agreement can potentially protect you and your family from expensive litigation down the road.
