May 10, 2021
If you are getting married, the last thing you want to discuss with your fiancé is the possibility of divorce. This well-founded concern typically causes you or your fiancé to contemplate entering into a prenuptial agreement. A prenuptial agreement is also known as an antenuptial agreement. Here is more on how these agreements work and what you could do if you are thinking of getting one.
Prenuptial agreements help to clarify the ownership of property and rights of each spouse following divorce. Particularly, a valid prenuptial agreement excludes your real or personal property from becoming marital property. Because it does not become marital property, then it is not subject to division in a divorce. These agreements go into effect at marriage.
The reality is that divorce rates are high in the United States. Unfortunately, nearly half of marriages end in divorce – and Oklahoma has one of the highest divorce rates in the country. You could be trying to offset the risk that your marriage might end in divorce. You do not want your wealth split in a divorce particularly by a spouse who is disloyal or unfaithful. Or, one who has not contributed their fair share in the relationship.
Oklahoma’s laws are based on the concept of equitable distribution. Absent a prenuptial agreement, the law will divide and distribute marital assets equitably. Specifically, Oklahoma considers each party’s needs and accumulation of assets during the marriage (marital property) versus what property each party had prior to the marriage (separate property). After determining fair market values of those marital assets, the court determines the marital estate to be divided up between you and your spouse. Notably, Oklahoma law does not guarantee a 50-50 split of assets between you and your spouse, but rather, a division that the court believes to be just and reasonable. There are no specific factors that the court must follow in determining division, and the judge has broad discretion.
By executing a prenuptial agreement, you assert control over the exclusion of property from the marital estate. For example, you own a beach house prior to your marriage. After marriage, you might renovate and extensively use this beach house for your family affairs. If divorce is imminent, you want to protect that house from going to your spouse. If the title of that property is in your name (not your spouse’s name), and you list the beach house as your separate property in your prenuptial agreement, then this protects your beach house from being a marital asset. A prenuptial agreement makes clear which of your assets are not your spouse’s assets, and what will remain your own if a divorce occurs.
Also, a prenuptial agreement can provide you with more control over your estate plan. You might plan to designate certain retirement assets or accounts for your beneficiaries including your children from a prior marriage. But, in a divorce, those assets might go to your spouse if a judge considers it marital property. By executing a prenuptial agreement, you could ensure that your estate plan is not disrupted by asset division rules in divorce.
Another benefit to a prenuptial agreement is that it could protect against an ugly court battle relating to property division. As a couple, you could decide in advance to divide up certain assets. You can do this under an agreed-upon scheme in your prenuptial agreement. Otherwise, in a divorce, the court relies on Oklahoma law to determine who gets what. In addition, disagreements about marital assets could cause you both to hire a lawyer and dealing with lengthy litigation. Advanced agreements between couples as to the disposition of certain assets can prevent bitter legal disputes.
Typically, absent a prenuptial agreement, the court could make one of the spouses responsible for the other spouse’s debts irrespective of whether the debt is solely in the name of the indebted spouse. If your fiancé is or could be financially irresponsible, then a prenuptial agreement could protect you from their bad financial decisions. A prenuptial agreement can assign debt to the spouse who incurs it.
There could very well be changes in laws on divorce that affect how the court divided up your assets. For example, Oklahoma might revise its divorce laws to enable your spouse to get more of your assets than before. There could be changes in the laws about the meaning of marital property or how said laws determine marital property. Without a prenuptial agreement, your assets might be at risk of changing hands through an unforeseeable legal scheme. Plus, either of you might one day move to another state which uses a different scheme for asset division in divorce. By getting a prenuptial agreement in place, you could potentially determine in advance the governing law that controls the disposition of your assets. Better yet, your prenuptial agreement could clearly identify a scheme that applies to the disposition of your assets. This would eliminate the need to heavily rely on the interpretation of a state’s laws.
Discussing a prenuptial agreement can be helpful for you and your fiancé. You can better understand your fiancé’s financial position and concerns. They can better understand your financial position and concerns. Discussing these things with your fiancé enables you both to know each other’s expectations. It enables you both to make decisions in advance to avoid uncertainty and legal conflicts which could become costly and emotionally draining.
However, not everyone benefits from a prenuptial agreement. For instance, you both might have little-to-no expectations of amassing assets (creating an estate). Typically, Oklahoma law does not consider your inheritance or assets that you acquire prior to your marriage as marital property. The law considers your retirement account balances prior to marriage as your separate property. Finally, your fiancé might pursue a prenuptial agreement that does not serve your benefit, and which causes you to lose significant rights. In this case, you might have to rethink getting married or otherwise push back for something more reasonable.
For your prenuptial agreement to be valid in Oklahoma, it must be in writing and signed by both parties. If you move forward with a prenuptial agreement, it should be drafted by an attorney to ensure that your wishes are clearly reflected in the agreement and that the agreement can hold up in court. For this reason, you should discuss a prenuptial agreement in further detail with an experienced family law attorney who is well versed on the ins and outs of prenuptial agreements and who is focused on serving your best interests.
Inner Vision Legal is a top family law firm who has helped many clients with prenuptial agreements, divorce, and child custody matters among other things. Backed by more than four decades of experience, Inner Vision Legal has been recognized as one of the best divorce law firms in Oklahoma. The firm aims to obtain the best results for our clients and to provide quality services at a reasonable cost. Contact the knowledgeable attorneys at Inner Vision Legal.