Prenuptial Agreements In Utah

Prenuptial Agreements In Utah

If it is important to you that your new partner sign a prenuptial agreement, you should discuss the issue with her as soon as the relationship becomes serious, but at least 6 months before the wedding. If you delay discussing this matter with her, she may feel pressured and resentful. These feelings take time to deal with, and weeks before the wedding is not long enough. Consult with an experienced Utah attorney if you and your would be spouse are considering a prenuptial agreement.
Persons getting remarried are more likely to consider a prenuptial agreement that specifies who will get what in the event of divorce or death. Some people feel that a prenuptial agreement destroys the romance of a relationship and that it sets up a couple to divorce, but the reality is that a prenuptial agreement no more causes a divorce than a seatbelt causes a wreck. Rather prenuptial agreements go a long way in resolving many of the issues that may arise in the event of divorce.

Today, the prenuptial agreement is a common planning device in second or later marriages in which the prospective spouses wish to preserve their assets for children and relatives from a prior marriage. More and more young professionals are also entering into prenuptial agreements. Even couples with few assets and little hope of acquiring substantial wealth can benefit from the prenuptial agreement. Although the requirements for a valid prenuptial agreement vary among the jurisdictions, states often insist that the parties provide full disclosure of their assets, or at least require full disclosure by the party who is seeking to protect his assets from later claims by the other. Because financial matters are often at the heart of marital disputes, the information the prospective spouses glean during the negotiations over the prenuptial agreement can strengthen the marriage. Moreover, because of the required disclosure, neither spouse is likely to have the nasty surprise of learning only after the wedding vows that the other is less financially sound than he appeared during the courtship.
In short, the prenuptial agreement gives the couple the opportunity to learn each other’s views and expectations concerning their assets. The couple’s disagreement on important financial matters prior to the wedding is a valuable piece of information that could, and in some instances probably should, affect the decision to marry. The romantic view of marriage—one without concern for finances, commitment, and responsibility—is an incomplete picture: marriage is, and in some respects has to be, a business. The agreement is not merely a contingency plan for death or divorce; rather, the contract encourages the couple to recognize the economic aspects of marriage and to plan accordingly.
The value of a prenuptial agreement (which is drawn up by an attorney) is in the communication between the partners about their relationship. Sometimes the partners may have different ideas about how things will be handled and a discussion will clarify misunderstandings. Some of the items included in prenuptial agreements are:
• Names-will the wife keep her maiden name?
• Adoption-will the husband adopt the new partner’s children?
• Religion-what religion will the children be reared in?
• Domicile-whose career will determine where the couple lives?
• Money-joint or separate accounts? Who is financially responsibile for the children? Will the spouses own property as a couple or as individuals? What will the children inherit from whom? Are debts in the marriage considered joint debts or not? Who is responsible for bringing how much income into the unit? How will the money be divided and/or used?
• Financial matters in the event of a divorce.
Having clear answers to such questions may be beneficial to the couple.

Validity of Prenuptial Agreements

Under Utah law, prenuptial agreements are valid and can be enforced in a court of law. Utah law looks prenuptial agreements as legally binding contracts that couples enter into in contemplation of marriage. It essentially means that the two spouses negotiate and sign the agreement to decide what will happen when they marry. A prenuptial agreement must be signed before the marriage. If it is signed after the marriage, its not a prenuptial agreement.
A prenuptial agreement is essentially a mutually agreed plan on how the assets of the spouses will be divided in case they divorce. It is basically concerned with the division of the assets of the spouses in case of a divorce. Assets include real property like land and building, personal property like cars, retirement accounts, etc.
While a prenuptial agreement must be signed before the parties marry, it becomes effective only after the parties are legally married.

Who Should Get a Prenuptial Agreement?

Whether or not you should get a prenuptial agreement is a decision that has to be taken by you and your would be spouse. There has to be two parties – you and your would be spouse. You alone cannot make a prenuptial agreement. In the absence of a prenuptial agreement, Utah law will determine the division of your assets in the event of a divorce. As such by having a valid prenuptial agreement in place, you are ensuring that your assets are dealt with according to your wishes in case of a divorce. If you do not have a prenuptial agreement, you essential leave the distribution of your assets post your divorce in the hands of the State of Utah.
If you are considering a prenuptial agreement before your marriage, speak to an experienced Utah attorney. Ideally you should consider a prenuptial agreement in the following cases:
• Debt – Both of you or your spouse is likely to bring in a major debt
• Property – Both of you or your spouse is bringing in property into the marriage
• Disparity – There is significant economic disparity between the two of you. You may be much better off then your would be spouse.
• Second Marriage – This isn’t the first marriage for either or both spouses.
• Children – Either or both spouses have children from another marriage.
An experienced Utah attorney can review your circumstances and draft a tailor made prenuptial agreement for you.
What does a prenuptial agreement cover?
Each prenuptial agreement is unique and made according to the circumstances of the parties to the agreement. Do not use a prenuptial agreement used by your friend or relative. Speak to an experienced Utah attorney for advice on prenuptial agreements. A prenuptial agreement will generally include all or some of the following:

• Property rights – What will happen to the properties of both spouses in the event of a divorce. Under Utah law, a prenuptial agreement can include properties outside the State of Utah. It will all also determine who can create security interest, encumber, mortgage, lease, assign, use, transfer, dispose of or otherwise manage property.
• Alimony – It will specify the alimony to be paid in case of a divorce.
• Insurance benefits
• Any other issues that the parties may mutually agree on as long as it does not violate Utah law and public policy.
What cannot be included in a prenuptial agreement
Under Utah law, certain things cannot be included in a prenuptial agreement. These include:
• Child support
• Medical insurance for children
• Child care coverage
• Health and medical provider expenses for children
It essentially means that a prenuptial agreement cannot limit or impose a cap on the amount of the above. The logic behind this is that child support belongs to the child and not the parents. While it is true that child support is paid to the custodial parent, it is for the benefit of the child. The money is meant to be used for support the child and not for any other purpose. Child support orders can also change if there is a change in circumstances. Utah courts award child support using child support guidelines.
Likewise, a prenuptial agreement cannot determine child custody in advance. During the course of the divorce, the spouses may reach an agreement on child custody but it cannot be part of a prenuptial agreement. Such a clause in a prenuptial agreement will not be enforced by a court in Utah. You can free to include child support and child custody clauses in your prenuptial agreement. Having these clauses will not invalidate the entire agreement. However, it is for you and your spouse to voluntarily adhere to the agreed terms on child support and child custody. In case of any dispute, the courts will not enforce child support and child custody according to your prenuptial agreement. Instead they will pass orders according to the best interests of the child and child support guidelines.
Alimony or Spousal Support
Under Utah law, a prenuptial agreement can include the amount and duration of alimony or spousal support. Utah law also permits the elimination of alimony through a prenuptial agreement. A couple can have a valid prenuptial agreement in place that explicitly states that no alimony will be paid in case of a divorce and the court will uphold the no alimony clause. However if the no alimony clause will result in one spouse becoming impoverished and having to seek assistance, the court will over look the clause and decide on the amount of alimony.

Uniform Premarital Agreement Act

The State of Utah adopted the Uniform Premarital Agreement Act in 1994. This Act attempts to harmonize the law on prenuptial agreement across the country. The Act states that premarital agreements should be enforced as long as they are voluntary, the terms are not unconscionable, there was fair and reasonable disclosure of the parties’ property and financial obligations, and the agreement does not cause either party to become eligible for public assistance or support. A court would retain the right to modify such agreements, even if otherwise valid, to the extent necessary to require a party to financially support a former spouse to the extent necessary to prevent that person from transferring his or her economic dependency onto the state. After this Act, prenuptial agreements came to enjoy a presumption of validity, as long as they were made voluntarily and with full disclosure of financial information. Some courts still maintain the additional requirement that an agreement be substantively “fair” to both parties.

Under Utah divorce laws, a prenuptial agreement will be valid if it meets certain conditions:

• Written – Oral prenuptial agreement will not be enforced by a court in Utah. All prenuptial agreements must be in writing.

• No consideration – Usually in a contract there is some consideration. However for a prenuptial agreement to be valid, there need no be any consideration.

• Contemplation of marriage – A prenuptial agreement must be made in contemplation of marriage. The parties must have determined the terms of the agreement with a definite and upcoming marriage in mind. If the marriage does not happen, the prenuptial agreement does not come into effect.

• Voluntarily singed – Both spouses must have signed the agreement voluntarily.

• Fair and reasonable disclosure – A prenuptial agreement will be invalid if either spouse failed to provide fair and reasonable disclosure of financial obligations and assets. The spouses should have adequate or reasonable knowledge of the each other’s financial obligations and assets.
Ultimately it is for the judge to determine if a prenuptial agreement can be enforced. If you are seeking to enforce a prenuptial agreement in Utah, speak to an experienced Utah attorney.

Changes to a prenuptial agreement

A prenuptial agreement signed before the marriage can be changed by the spouses after the marriage. The spouses can also revoke the agreement. An experienced Utah attorney can assist you change or revoke your existing prenuptial agreement.

Customized Prenuptial Agreement

Every couple is different. There is no specific prenuptial agreement that can be used by all couples. The agreement must be tailored to the specific requirements of each couple. What may work for one couple may not necessarily work for another. The first step in making a prenuptial agreement is meeting an experienced Utah lawyer. The lawyer will ask you questions to know what exactly you are looking for and will also want to ensure that both of you are voluntarily entering into the agreement. After that the lawyer will draft a watertight tailormade prenuptial agreement for you.

Prenuptial Agreement Lawyer Free Consultation

When you need legal help to get a prenuptial agreement, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews


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Should I Get A Prenuptial Before I Get Married?

Should I Get A Prenuptial Before I Get Married

A prenuptial agreement is a written contract created by two people before they are married. A prenuptial typically lists all of the property each person owns (as well as any debts) and specifies what each person’s property rights will be after the marriage. In some states, a prenuptial agreement is known as an “ante-nuptial agreement,” or in more modern terms, a “premarital agreement.” Sometimes the word “contract” is substituted for “agreement,” as in “prenuptial contract.” An agreement made during marriage, rather than before, is known as a “post-nuptial,” “post-marital,” or “marital” agreement. Contrary to popular opinion, prenuptial are not just for the rich while prenuptial are often used to protect the assets of a wealthy fiancé, couples of more modest means are increasingly turning to them for their own purposes. Here are some reasons that some people want a prenuptial:

• Pass separate property to children from prior marriages: A marrying couple with children from prior marriages may use a prenuptial to spell out what will happen to their property when they die, so that they can pass on separate property to their children and still provide for each other, if necessary. Without a prenuptial, a surviving spouse might have the right to claim a large portion of the other spouse’s property, leaving much less for the kids.

• Clarify financial rights: Couples with or without children, wealthy or not, may simply want to clarify their financial rights and responsibilities during marriage.

• Avoid arguments in case of divorce: Or they may want to avoid potential arguments if they ever divorce, by specifying in advance how their property will be divided, and whether or not either spouse will receive alimony. (A few states won’t allow a spouse to give up the right to alimony, however, and, in most others, a waiver of alimony will be scrutinized heavily and won’t be enforced if the spouse who is giving up alimony didn’t have a lawyer.)

If you don’t make a prenuptial agreement, your state’s laws determine who owns the property that you acquire during your marriage, as well as what happens to that property at divorce or death. (Property acquired during your marriage is known as either marital or community property, depending on your state.) State law may even have a say in what happens to some of the property you owned before you were married. Under the law, marriage is considered to be a contract between the marrying couple, and with that contract comes certain automatic property rights for each spouse. For example, in the absence of a prenuptial stating otherwise, a spouse usually has the right to:

• share ownership of property acquired during marriage, with the expectation that the property will be divided between the spouses in the event of a divorce or at death.

• incur debts during marriage that the other spouse may have to pay for, and

• share in the management and control of any marital or community property, sometimes including the right to sell it or give it away.
If these laws — called marital property, divorce, and probate laws — aren’t to your liking, it’s time to think about a prenuptial, which in most cases lets you decide for yourselves how your property should be handled

Making a Valid Prenuptial Agreement

As prenuptial agreements become more common, the law is becoming friendlier toward them. Traditionally, courts scrutinized prenups with a suspicious eye, because they almost always involved a waiver of legal and financial benefits by a less wealthy spouse and they were thought to encourage breakups. As divorce and remarriage have become more prevalent, and with more equality between the sexes, courts and legislatures are increasingly willing to uphold premarital agreements. Today, every state permits them, although a prenup that is judged unfair or otherwise fails to meet state requirements will still be set aside. However, because courts still look carefully at prenups, it is important that you negotiate and write up your agreement in a way that is clear, understandable, and legally sound. If you draft your own agreement, which we recommend, you’ll want to have separate lawyers review it and at least briefly advise you about it otherwise a court is much more likely to question its validity.

Things to know about prenuptial agreements

• The Basics: A prenuptial agreement is a private agreement between a couple signed before they get married which sets forth the division of their assets in the event of divorce or death. Each state has its own laws regarding the enforcement and validity of prenuptial agreements. Which state’s law to apply depends on where the marriage took place, where the parties live during the marriage and what law the agreement says to apply. Often, couples in this situation will seek out the laws of the state that will be most beneficial in carrying out the terms of the prenup.
• Fairness matters: In most states, the agreement has to be fair, the parties have to fully disclose their assets, and the parties each need their own attorney.
• Circumstances dictate fairness: The idea of fairness depends on the unique facts and circumstances surrounding each couple.
• Full disclosure is required: Typically, the parties also have to fully disclose their assets. That is not hard to do here since one can google each of the parties and find out their estimated net worth. But in many states it still needs to be set forth in the agreement. Also, some states look at each party’s expected inheritance.
• Think ahead: Presenting your intended with a prenup the week before the marriage is not good practice, and in some states could be used to overturn the prenup. For that reason, the idea of a prenup should be raised long before the marriage.
• Premarital assets are usually off limits: Prenups often state that any assets brought into the marriage remain that person’s separate property. A prenup could also state that any assets the couple earned during the marriage are marital property subject to division. Many clients find this approach fair and reasonable; however, each prenuptial agreement is tailored to the couple’s unique assets and the terms they agreed to.
• Setting the terms for alimony: In most instances, the agreement will either waive alimony or not address the topic. If alimony is waived, it means that one party cannot seek alimony from the other in the event of divorce.
• Till death do us part: Most prenups will allow each party to leave their separate property to whomever they want, while requiring some provisions for the surviving spouse.
• Children are off the table: A prenuptial agreement cannot provide for or limit child support or rights related to children. Courts and legislatures do not let couples bargain away the rights of their children.
A prenup establishes the property and financial rights of each spouse in the event of a divorce. So while no one is thinking about a divorce when they get married, about half of all marriages end up in divorce proceedings. So it’s often prudent to at least consider a prenuptial agreement.

Here Are Some Pros

• A prenuptial marriage agreement does not indicate that a couple is anticipating a divorce.
• Financial matters that need to be faced are examined.
• Prenuptial agreements can preserve family ties and inheritance.
• If your future spouse won’t sign a prenuptial marriage agreement, it may be best to discover this before the wedding.
• The financial well-being of children from a previous marriage can be protected.
• Personal and business assets accumulated before your marriage is protected.
• A prenup puts financial expectations out on the table before your wedding.
• A prenuptial marriage agreement spells out which assets a spouse may want to give to children or other family members in the event of death.
• In the event of a divorce, a prenuptial agreement eliminates battles over assets and finances.
Cons
• Some people look at creating a prenup as planning the divorce before planning the wedding.
• They are unromantic and can cause serious friction in the relationship.
• Prenups can give the appearance that there is a lack of trust between the partners.
• A prenuptial agreement could create resentment between spouses.
• A prenuptial marriage agreement makes it seem like there is a lack of a lifetime commitment to one another.
• Prenuptial marriage agreements can be set aside for failure to disclose all assets, or if there is evidence of fraud, duress, unfairness, or lack of representation at the time of signing the agreement.
There are numerous reasons for a prenuptial agreement. Below is a list of items commonly included in prenuptial agreements:
• Separate businesses
• Retirement benefits
• Income, deductions, and claims for filing your tax returns
• Management of household bills and expenses
• Management of joint bank accounts, if any
• Arrangement regarding investing in certain purchases or projects, like a house or business
• Management of credit card spending and payments
• Savings contributions
• Property distribution to the survivor, including life insurance, in the event of death
• Arranging putting one or the other through school
• Settlement of potential disagreements, such as using mediation or arbitration
Most common mistakes made by couples when executing a prenuptial agreement
• No Independent Legal Representation: Both parties must have independent and separate attorneys. Each attorney will make sure his/her client fully understands the prenuptial agreement and the signing is done voluntarily.
• Duress: If one party is pressured into signing the agreement or had no mental capacity to sign the agreement (such as been drunken or under the influence of drugs), the agreement will likely be invalidated by the Court if challenged.
• Too Soon Before Wedding: Couples frequently postpone the signing of their prenuptial agreement to the very last minute. In many cases, the invitations have already been sent out when the prenuptial agreement is signed. In the event of divorce, one party can successfully argue he/she was coerced into signing the agreement. This can be avoided if the agreement is signed at least one to three months before the wedding date. The spouse-to-be should be given enough time to deliberate on the provisions of the agreement before signing it
• No Full Disclosure: When executing a prenuptial agreement, if one party doesn’t fully disclose all of his/her assets, properties and debts, the Court may invalidate the agreement. Therefore, make sure you and your spouse-to-be fully discloses all relevant information in the prenuptial agreement.
• Child Support Provisions: A prenuptial agreement cannot have any provisions relating to the children of the marriage, such as custody and child support. These sorts of agreements are deemed to be counter to public policy and thus unenforceable. The Court will disregard all such provisions and pass judgment in the best interests of the children. The Court may also decide to invalidate the whole agreement if such provisions are present.
• Unconscionable: Although it is acceptable for a prenuptial agreement to be biased towards one party, it cannot be so one-sided that it renders the prenuptial agreement unconscionable. Unconscionable is often defined as shocking the conscience. If your prenuptial agreement is unconscionable, it will likely be deemed unenforceable by the Court. Also, if enforcing your prenuptial agreement results in one party becoming dependent on State welfare, the court may tweak the agreement to take that person out of welfare.
• Unenforceable Provisions: If your agreement has any unusual provisions in it, such as one person should do the dishes or he/she should maintain a certain hair color, those provisions (and usually those provisions only) may be deemed unenforceable. If such provisions are present, they may weaken the whole agreement.
• Oral Agreement: Courts disregard oral prenuptial agreements except in select circumstances. The prenuptial agreement should be in written form. Ideally, you should sign four copies: one copy for each partner and the other to be kept with each party’s independent attorney.
• Ambiguous Writing: The enforceability of any legal agreement depends on the exact wording of the agreement; a prenuptial agreement is no different. If your agreement is not clear or has ambiguous wording, it may get successfully challenged in court. You should seek counsel of a competent attorney to help you draft a sound agreement.
• Promises made, but not kept: Don’t make promises to your significant other that you are not willing to keep. If you make such promises, the Court may interpret that as fraud and throw out the prenuptial agreement.

Prenuptial Agreement Lawyer Free Consultation

When you need a prenuptial agreement, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews


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