Under what circumstances should a prenuptial agreement be considered in Rhode Island?

Premarital agreements are not right for every couple! Prenuptial agreements are most prevalent in second marriages. They are especially prevalent in first or second marriages when one or both of the parties have children of a prior marriage or relationship. They are also prevalent when a future spouse has a child or children from a prior relationship.

This article only pertains to prenuptial agreement drafted in Rhode Island or that will be interpreted by Rhode Island law.

Is there any difference between a prenuptial and a premarital agreement?

Premarital agreement, antenuptial agreement and prenuptial agreement are all different terms for the same document and are used interchangeably.

Preserving assets for children.

When a person has a child from a different relationship and is considering a marriage, he / she often wants to insure that his / her child will inherit hard earned assets. A person wants to insure that their assets will go to their children rather than their new spouse or the new spouses' children.

Many parents fear that their hard earned assets that were acquired before the marriage will go to their new spouse or his / her children upon divorce or death rather then their own child.

Estate planning can be a crucial element of a good prenuptial agreement!

Without protection through estate planning, will, trust or a prenuptial agreement, a substantial portion of your separate assets may go to your new spouse upon divorce or upon your death. Estate planning can also be a very important element in premarital agreements. I strongly advise that you retain a Rhode Island (RI) Divorce and Family law attorney / lawyer to draft or represent you concerning the execution of the premarital agreement.

Prenuptial agreements are often entered into when either husband or wife has acquired significant premarital "separate" property / assets. In many cases, one of the spouses will have a more substantial estate then the other spouse.

Be careful! The suggestion of a Prenuptial can be an emotionally charged issue!

Tread very carefully when suggesting a premarital agreement with your future spouse especially in a first marriage!

Often, your future husband / wife will be very upset with the suggestion that they should sign a premarital agreement. This is a very delicate subject. It could potentially imperil the entire relationship. Some people feel that premarital agreements run contrary to the marriage covenant. Others are against prenuptials because they believe that in essence, it is planning for divorce when marriage is ideally forever.

Negotiate the prenuptial well in advance of the wedding!

It is a very bad idea to suggest a prenuptial at the last minute. You should propose the prenuptial well in advance of the wedding. The last thing you want to do is negotiate a complex contract a week or two before the wedding. It can be unseemly to be contacting a lawyer / attorney right before the wedding and can put unfair pressure on your spouse.

What are standard provisions put into a simple prenuptial agreement?

The most standard prenuptial agreements simply protect a person's separate premarital property. In many instances the parties waive all right title and interest to the premarital property of the other party. The prenuptial agreement should also address issues concerning the appreciation in value of premarital property during the course of the marriage. The prenuptial should address additions to the premarital property after the wedding. The prenuptial should also address when premarital property is used to purchase other property during the course of the marriage.

The most simple, prenuptial agreements simply state that all property that the parties owned prior to the marriage would be their separate property free and clear of all claims of the other party. In this scenario any property acquired after the marriage would be marital property subject to equitable distribution. This type of prenuptial should also address the issue of the increase in value of premarital property.

Some prenuptial agreements go even farther and state that property acquired in an individuals name during the course of the marriage would be separate property that the other party would have no rights to upon divorce or death. The enforceability of such a provision is tenuous at best.

Prenuptial agreements can essentially state any provisions that the parties desire and the law allows.

What are the most important elements of a good antenuptial agreement?

The most important facet of a good premarital agreement is clarity. The second must important facet of a prenuptial is complete and full disclosure.

Both parties must disclose all assets and liabilities.

If the parties have not disclosed material and substantial assets and liabilities, the prenuptial may not be enforceable. Husband and wife should attach a financial statement as an exhibit to the prenuptial. If the parties do not properly disclose their assets and liabilities, then it is questionable whether the parties agreed to anything because they do not know what they were agreeing to.

Are both the prospective wife and husband required to get an attorney / lawyer?

No. The parties are not required to have an attorney / lawyer to review the prenuptial in Rhode Island(RI). Prenuptial agreements are still valid and enforceable even if one of the parties had an attorney draft the agreement and the other party did not have a lawyer review the agreement.

Defining Separate Property:

The parties need to define what constitutes separate property and whether separate property includes additions, increase in value (appreciation) of separate property. The parties need to address the reinvestment of the separate property into another asset during the course of the marriage.

Retirement Accounts, 401k, 403(b), pensions

You may consider a provision concerning 401k, 403(b) , Stock Options, Pensions, Retirement Accounts as well as the increase in value, additions and or reinvestments of such retirement accounts after the marriage. In order to waive marital rights to certain retirement accounts you may need a provision under IRS guidelines agreeing that your spouse will sign appropriate forms to waive or relinquish spousal benefits.

Waiver of Alimony

Some premarital agreements require one or both spouses to waive their rights to alimony or temporary alimony. This can be a crucial portion of a prenuptial agreement. This is often also the most contentious area of negotiations.

Real estate

Some premarital agreements address issues concerning Real Estate especially separate real estate of the parties. You want to discuss with your lawyer whether or not your spouse will be agreeing to waive their right to elect against the will of the other upon death and waive the statutory life estate. This is very important in Rhode Island. You may want to consider putting the real estate in trust. This is all very complicated and should not be done without an attorney

Jointly Held - Marital property.

You need to consider whether you want the agreement to include how marital property will be divided upon divorce. Some people agree that all marital property will be divided 50/50 upon divorce or separation. Other agreements are silent on this issue.

Choice of Law:

The parties should state under which law the prenuptial agreement should be interpreted. If the parties reside in Rhode Island then they should have Rhode Island law apply in the future.

Debt

Will each party be responsible for separate premarital debt. Who will be responsible for joint premarital debt? Will the parties agree to split joint marital debt 50-50? Who will pay individual / sole debt incurred during the marriage?

Life Insurance

Is either party agreeing to maintain a life insurance policy for the benefit of the other spouse? This is often done as a way to make sure the spouse will collect upon death even if the person's estate plan otherwise excludes the spouse. Will the life insurance be required to be maintained after the divorce or separation?

Gifts

Who will get to keep gifts between the parties? What will happen to joint gifts or gifts given to one person but not the other. Who will get the engagement ring, wedding band, jewelry, art etc?

Severability clause

Most good premarital agreements contain a severability clause such as the one set forth here: "SEVERABILITY. If any provision of this Agreement is held to be invalid or unenforceable by a Court of competent jurisdiction, this Agreement shall be construed as if such illegal, invalid or void provision were not a part hereof and the validity of the remaining provisions shall be unaffected thereby."

Legal fees upon divorce. Will either party be required to pay the others legal fees as part of the divorce?

Some prenuptial agreements address the issue of legal fees in a potential divorce.

Acknowledgments of counsel or the opportunity to retain a lawyer and acknowledgment that agreement is freely and voluntarily entered into.

It is important that the parties acknowledge that they carefully read the agreement, that they signed it freely and voluntarily and that they believe that the agreement is fair and equitable to them.

Many agreements contain a paragraph similar to this: ACKNOWLEDGMENT. The parties have, during a series of conferences between themselves, mutually agreed upon the arrangements set forth herein. Each party hereto declares that he or she has had the opportunity to seek independent legal advice by counsel of his or her own selection and that each is satisfied as to this agreement's fairness. The wife has retained Attorney X to represent her. The provisions of this Agreement and their legal effect have been fully explained to the parties and each party acknowledges that he and she believes the Agreement is fair and equitable, and is freely and voluntarily entered into.

Integration and modification provision.

It is crucial that there are no side agreements or verbal agreements outside of the four corners of the documents. An integration clause is an important facet of a prenuptial agreement.

Cooperation provision

A Cooperation provision is essential to a good antenuptial agreement.

"COOPERATION. The parties hereto shall at any time, and from time to time, execute and deliver all such deeds and other documents as may be necessary, and do all such things as the other of them, his or her heirs, executors or administrators shall reasonably require for the purpose of giving full effect to this Agreement. Each of the parties hereto shall release and quitclaim unto the other, or to such others as he or she respectively may request, all of his or her rights of curtesy or of dower. It is the intention of this clause to permit and empower each of the parties hereto to deal with his or her own separate property now owned or hereafter acquired, in all respects, except as limited by this Agreement, as if each party hereto were single."

Disclosure Provision

"DISCLOSURE. Each of the parties has made a full disclosure to the other of all property, assets and liabilities owned or otherwise held by each respective party, as listed in Exhibits "A," "B," "C," and "D" attached hereto. The parties hereby acknowledge that they are aware that in the future the financial circumstances of either or both of them may be altered in some way, whether substantially, directly, indirectly or otherwise."

Notary and Attestation of Counsel.

The agreement must be signed in front of a notary and if the parties both have attorneys they may want to include an attestation of counsel paragraph that both lawyers sign.