Fair and Reasonable?
We often hear that a prenuptial agreement can be challenged based on arguments of unfairness, and inequality. Arguments of this type are not convincing as a requirement for fairness can not violate a person’s rights to protect one’s financial interests.
In a prenuptial agreement your intended spouse will waive his/her rights to your pre-existing assets and all income earned and property acquired during the marriage, you will also waive your rights to your intended spouse’s pre-existing assets and all income earned and property acquired during the marriage. This is equal and fair. A waiver of these rights does not invalidate a prenuptial agreement.
A prenuptial agreement states that each party retains his/her own income and property earned prior to and during the marriage. Agreeing there will be no community property or marital property of the marriage. Each party retains his/her own property. Neither party will benefit financially from a divorce. This is also equal and fair.
It is common that one party to a marriage will have more assets and a greater earning power than the other party. When people enter into marriage on an unequal financial footing the fact that a prenuptial agreement may be seen as unequal is often the result of the parties’ financial positions when the marriage began. It is for this reason that valid prenuptial agreements can be incorrectly interpreted as one sided.
Is it fair that the person who comes in to the marriage with more money than the other person should lose their money because of the marriage? Is it fair that the person who comes in to the marriage with less money should profit from the marriage?
While a prenuptial agreement is often desired by people who have significant assets, it is reasonable that any person, wealthy or not, would elect to assure that his or her assets are not forfeited if the marriage is not successful. Keeping it Real – Prenups Are for Poor People
A person contesting the terms of a prenuptial agreement almost always has fewer assets coming into the marriage, and has accumulated fewer assets during the marriage. This person often feels entitled to the assets and earnings of the other party as an entitlement resulting from the marital relationship. However, a prenuptial agreement does not become unfair just because one parties’ earning power is greater than the other.
Typically, courts allow prenuptial agreements unless they result in the contesting spouse becoming destitute, and unable to support him or her self due to unemployability, disability, or a financial status that makes them eligible for support under a program of public assistance. Even in these cases it is extremely rare to see an entire prenuptial agreement set aside. Typically, minimal adjustments are made to accommodate the needs of the contesting party. The prudent preparation of a prenuptial agreement would foresee the potentiality of such a situation and take steps to assure the enforceability of the prenuptial agreement.
Finally, a prenuptial agreement can not encourage divorce, so the line between fair and reasonable and encouraging divorce must be managed by an experienced professional.
Why do we want to marry? Men and women may have different answers to this question. A man will typically answer that marriage is entered into between two people who are in love with each other, who desire to live in the same home, and pledge exclusivity to each other, all of which can be achieved by simply living together. Women will answer in the same way but may add that marriage is also entered into for security. Conversely, men are not typically looking for a loving relationship to provide financial security. Expectations going into a marriage can be different for men and women. Divorce statistics reveal that expectations going in to a divorce also vary greatly between men and women. Women typically receive settlements, men typically pay settlements. Women typically receive custody of children, men typically see their children from 9AM on Saturday to 6PM on Sunday, every other weekend. Is that fair and reasonable?