ORIGINALLY WRITTEN CYNTHIA MARTENS
As love weaves an enchanted spell around a couple planning to be married, the spider waiting in the wings could be whispering “Should you have a prenuptial agreement?”
John Johnson, whose law practice is based in Hillsboro, doesn’t advise prenuptials for young couples.
“For first marriages-people wanting to do a prenuptial agreement-I personally don’t think it’s a good idea,” Johnson said.
“That’s like going to a preacher and saying ‘Give us the kind of marriage that would be OK if we decide to get divorced.’
“Preachers would say, ‘I don’t do that.'”
A prenuptial agreement is a contract between two people planning to be married. The contract details how assets will be distributed in the event of a divorce or death.
This type of contact is not a recent innovation.
Such agreements have existed for thousands of years, especially in the European and Far Eastern cultures, where royal families made provisions to protect family inheritance and wealth.
Today, with more couples entering into second or subsequent marriages, a prenuptial agreement can be a safeguard to protect the property of people far removed from any royal assets.
“From a philosophical standpoint, I think prenuptial agreements work best and should be used on second marriages with children,” Johnson said.
“Or when people get married and they both have families. I think it avoids a lot of potential litigation in the future if you have something like that.”
Money creates all kinds of problems that people don’t contemplate when they’re in love, he said.
Although Johnson does not personally agree with prenuptials for young couples entering into a first marriage, he said he’s not critical of those who decide to do it.
“I’m not saying I would not do one, ” he said. “I might.”
Reasons for prenuptials can vary according to the history of each couple.
According to information in the literature about prenuptials, the following is a list of reasons to consider, if the individuals:
have assets such as a home, stock or retirement funds.
own all or part of a business.
receive or will receive an inheritance.
have children and/or grandchildren from a previous marriage.
one is much wealthier than the other.
one will be supporting the other through college.
a loved one needs to be cared for, such as an elderly parent.
one or both are pursuing a degree or license in a potentially lucrative profession, such as medicine.
there is potential for an increase in income because a business indicates large future earnings.
The law governing prenuptial agreements is the Uniform Premarital Agreement Act- KSA 23-801 et. seq., a statute passed in 1988.
“The statute has the effect of making the premarital agreements probably more enforceable than they were prior to the law, because it shifts what it takes to have one declared invalid,” Johnson said.
Before the law, one party could potentially prove that the terms of the agreement weren’t fair, and chances were good that it could be overturned in court.
“Nowadays, you have to prove that it was unconscionable,” Johnson said. “And that’s pretty hard to do.”
Prenuptials have also been called antenuptials and premaritals, all referring to a contract before marriage.
Postnuptial agreements follow the same guidelines but are contracted after the marriage.
Legal information is within easy reach on the Internet. Some may be tempted to write a prenuptial without the help of a lawyer or take their agreement a little too lightly, such as director Steven Spielberg.
Actress Amy Irving, Spielberg’s ex-wife, received half of what he earned during their four-year marriage because their prenuptial was scribbled on a napkin, and she didn’t have a lawyer, according to bankrate.com.
The people of Marion County may not be as well known as Spielberg, but they have the same choice to hire a lawyer and go through proper channels to secure their assets.
“If you don’t have a lawyer-you draw it upon a napkin-it’s pretty easy for the other side to prove that there was fraud involved or there was withholding of information,” Johnson said.
“And that’s how you challenge these (prenuptials).”
If written properly, the agreement will have a signature block on it, it will be notarized and have a place for two lawyers to sign.
Johnson stressed the importance of both parties being represented by a lawyer.
“The way I look at it is this agreement is a contract between two people,” Johnson said.
“And a lawyer cannot represent two people. One of the ways you defeat these things is to say, ‘He and his lawyer fooled me.'”
If the second party declines getting a lawyer, Johnson said he will usually put that information into the agreement.
Premarital agreements are a personal decision, according to Joseph P. Zwack, author of “Premarital Agreements: When, Why and How to Write Them.”
But without one, couples potentially relinquish power over their assets and their privacy.
Property accumulated during a marriage will be divided equally in nine community-property states, such as California, Nevada and Washington.
“In a community-property state, the property is half and half, once you get married,” Johnson said.
Kansas is an equitable-distribution state. That means that assets are divided according to what the court deems fair.
A judge in Kansas would consider such things as the length of the marriage, whether there are children and the couple’s age, health and job skills.
“In Kansas, the judge doesn’t necessarily have to split the property in half,” Johnson said. “It’s fair and equitable.”
Premarital agreements affect property rights after a marriage has ended.
“I think they’d be just as important in either a community-property state or an equitable distribution state,” Johnson said.
Most important to include in a prenuptial are property, and support rights and obligations,” he said.
“As a practical matter, these things are usually over property. And that’s usually what you spend the most time working on is what happens to the property if you get divorced.”
Johnson charges by the hour and said a prenuptial agreement could cost between $150 and $1,000.
“And the $150, my guess is you wouldn’t see very many of those,” he said.
Those hoping to save legal costs by filling in the blanks on a universal prenuptial form, may create potential legal problems in the future.
“I think you have to know how to put it together and fit it to a person’s situation,” Johnson said about writing prenuptials.
“And that’s an art. There’s no black or white in most of these legal questions. If law were a real science, you wouldn’t need lawyers.”
He suggest those with questions about legal matters, such as prenuptials, consider making an appointment for a consultation with a lawyer.
“The most you’re going to pay any lawyer is maybe $100 (for a consultation), and I doubt if it will ever be that much,” Johnson said.
“If you think you need a prenuptial agreement, then I think you out to go talk to somebody.”