Fayetteville, Arkansas Prenuptial Agreement Attorney

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    Prenuptial agreements have a reputation for being undesirable when two individuals are considering marriage. However, the divorce rate for married couples in the United States is between 40 and 50%, and the rates for individuals who remarry are even higher. Therefore, it may be worth exploring the idea of drafting a prenuptial agreement before you get married.

    Prenuptial agreements help to protect the assets of each spouse if the marriage dissolves for any reason. They can also serve as a helpful accounting tool for evaluating your financial circumstances before taking such a monumental step in your life. These agreements can cover a number of different areas in addition to physical property and assets, such as insurance policies and debt obligations.

    At Gunn Kieklak Dennis LLP, our divorce attorneys are experienced in several areas of family law. We understand that it may be difficult to speak with your spouse about a prenuptial agreement, but it may benefit both of you. To schedule a confidential consultation with one of our dedicated attorneys, contact us at (479) 439-9840.

    What is a Prenuptial Agreement?

    A prenuptial agreement is a contract that is prepared before two individuals are married. The purpose of the contract is to protect the assets of each spouse in the event of a divorce. The legal document is used to set boundaries regarding assets, property, and even the payment of alimony.

    Prenuptial agreements can cover a variety of marital issues:

    • The right to use, own, or sell property that each spouse has access to
    • The right to retain pre-marital property after a divorce
    • Determining responsibility for debt accumulated during the marriage
    • The rights to a life insurance policy
    • The choice of law that will govern the prenuptial agreement (e.g., the laws of another state)

    A prenuptial agreement can also cover non-marital issues as long as the contract does not require actions that are illegal under Arkansas law. For example, a prenuptial agreement cannot be used to regulate the limits of child support or to address issues regarding child custody as these are off-limits under Arkansas law.

    Some people believe that prenuptial agreements are primarily used by wealthy individuals to protect a plethora of assets they do not want to divide or lose during a divorce. However, there are many uses for prenuptial agreements that can serve couples who do not possess immense wealth. The following is a list of common uses for prenuptial agreements:

    • You own or possess an interest in a pre-marital business
    • You and your spouse have different income levels
    • You have children from a previous marriage and want to keep their future inheritance separate from your spouse’s assets

    If you need to know more about prenuptial agreements in Arkansas, you should speak with an experienced Fayetteville family lawyer.

    How to Create a Valid Prenuptial Agreement

    If you and your spouse elect to sign a prenuptial agreement before getting married, you should ensure that the agreement is valid. Otherwise, the time and effort exerted on a stressful undertaking such as this may be in vain. Further, you may be relying on a faulty document as protection without even realizing it.

    Prenuptial agreements are enforceable once you are married unless the document was not executed correctly. To create a valid prenuptial agreement in Arkansas, you and your spouse must satisfy all of the following requirements.

    Knowing and Willful Agreement to the Terms

    For the sake of the document’s legality, it is imperative that each spouse understands the terms of the agreement completely (e.g., the distribution of property or life insurance) prior to signing the agreement. This requires more than just an explanation of vocabulary. Both spouses need to have a complete understanding of the ramifications of the terms of the agreement. An attorney can distill the legal language into terms that express the real-world meaning of the agreement. While not necessary in Arkansas, the signatures of witnesses to that effect can be powerful evidence that the terms were understood and willfully accepted.

    Sometimes, signing the agreement on a date very close to the wedding date can imply a lack of willfulness. In other words, if the agreement was signed just days before the wedding, it can appear as though one party was forced into accepting unfavorable terms. Negotiating and executing the prenuptial agreement early can be critical to ensuring the validity of the agreement.

    If you are engaged to be married and are considering a prenuptial agreement, we urge you to speak to one of our Arkansas prenuptial agreement attorneys as soon as possible so as to avoid the unintended consequences of procrastinating on an otherwise genuine agreement. An attorney is not necessary for a valid prenuptial agreement in Arkansas, but a court will take into account whether the spouses had access to an attorney in their determination of validity regarding the prenuptial agreement.

    Written and Signed Physical Agreement

    In order to obtain a valid prenuptial agreement under Arkansas law, the actual document must be physically printed and signed by both spouses. Prenuptial agreements only become effective upon the couple becoming legally married. The agreement should also specifically identify the date of the marriage to avoid any confusion. If the marriage is postponed or rescheduled, the prudent course of action would be a new execution of the agreement, though this is not always necessary.

    Equal Bargaining Power of the Parties

    Prenuptial agreements, like any other contracts, may be invalidated by a court where the agreement is deemed “unconscionable.” A prenuptial agreement is unconscionable when it is deemed substantially unfair enough to be illegal. Unconscionability can be imputed due to either the sheer inequity of the terms of the contract or the disparity of bargaining power between the parties.

    The most common instances of unconscionability are where one spouse did not have adequate information about the other spouse’s financial circumstances. Prior to executing a prenuptial agreement, both spouses have the right to receive fair and full disclosure of the other spouse’s financial circumstances. This includes information about any assets or debts which may impact the spouse in the present or future. This right may be waived if the spouse signs a waiver in writing. Otherwise, it is important for both parties to provide an open and complete financial picture to avoid the appearance of impropriety. Our attorneys can help prepare and present a proper disclosure to that effect.

    Courts may also determine that a prenuptial agreement is unconscionable if enforcing the terms of the agreement would leave one spouse destitute to the level of requiring help from government assistance programs such as welfare.

    If a spouse is dishonest regarding the assets that they own, the prenuptial agreement is not valid. Additionally, if a provision of the agreement does not provide adequate alimony payments and one spouse requires public assistance to meet basic needs, a court will not enforce the agreement.

    Modifications and Postnuptial Agreements

    After a prenuptial agreement has been executed and a couple has wed, events may occur that will cause the spouses to rethink their initial agreement. Fortunately, a prenuptial agreement can be amended or revoked after you have been married. This is often done by creating a “postnuptial” agreement. Postnuptial agreements can amend a prenuptial agreement, but you do not need to have a valid prenuptial agreement in place in order to execute a postnuptial agreement.

    An agreement can be amended or revoked only if both spouses sign a written agreement to alter the terms of the original agreement. An amended or revoked prenuptial agreement does not require consideration to be enforceable, meaning that the spouses do not exchange anything to change the agreement.

    Postnuptial agreements are most common where a couple is separated or is considering separation and the financial circumstances of the parties have changed substantially since the prenuptial was signed. An attorney can be helpful by assisting in in the negotiation, certifying proper disclosure, and drafting valid terms that effectively amend any prior agreement.

    Limits of Prenuptial Agreements

    These are only some issues that can be controlled with a prenuptial agreement. There are many other variables to consider when executing a prenuptial agreement.

    A prenuptial agreement is not a substitute for a will. While some of the terms may appear similar, it is important that you do not rely solely on your prenuptial agreement for the direction of your estate. In the event of your untimely death, a prenuptial agreement will not prevent your assets from passing through intestacy, which is a procedure determined by the state for distributing assets where no will is present. Consult an attorney to ensure that you are prepared in all eventualities.

    Prenuptial agreements also will not resolve child custody issues in the event of a divorce. While they may be helpful in protecting the inheritance of a spouse’s child from a previous marriage or relationship, the terms of prenuptial agreements are not sufficient to avoid a family court determination on custody in the event of divorce.

    Our Fayetteville Prenuptial Agreement Lawyers Are Ready to Represent You

    If you need assistance drafting a valid prenuptial agreement, you should consult with an experienced Fayetteville prenuptial agreement lawyer. At Gunn Kieklak Dennis LLP our lawyers can assist you with making the prenuptial agreement process as smooth as possible. Our lawyers understand that prenuptial agreements can be a sensitive topic and we are here for you. To schedule a confidential consultation to discuss a prenuptial agreement, reach us at (479) 439-9840.