Alabama Family Law Blog

Fellow family law blogger, Jeffrey Lalloway of the California Divorce and Family Law Blog, recently concluded a series of posts on what to include in your prenuptial agreement.

It is a great series (as is his blog). I emphasize numbers 2 and 12 as these are two issues that, if properly addressed, can help ensure the validity of a prenuptial agreement in Alabama (i.e. full disclosure and representation by a lawyer for both parties).

Also, when reading, keep in mind that Alabama is not a community property state like California. Thus, some of the terminology might be different, though the issues regarding the divisibilty of property would be the same. And, I must admit, I've not had the prenuptial in which we included number 13 (but I have seen it come up in divorces before!)

Here is his list:

1. Decide how all of your debts will be handled. This includes those debts incurred before you are married and those incurred after you are married.

2. Make sure you disclose all of your assets, liabilities, sources of income, and any other potential future assets, such as gifts or inheritances.

3. Should you divorce or die, decide who will get your primary residence or any vacation homes.

6. Clearly state what will happen to each specific type of property, either community or separate. For example, real estate, antiques, jewelry, stock options, and accident settlements.

7. Determine the status of any gifts or bequests you receive, either before or after marriage. These should be separate property, but questions may arise when a gift is given to a couple after marriage. A good example is a gift by one spouse's parents of a down payment on a house. Is that a gift to the couple or just to their child.

8. Although any provision for child support won't be binding later, you can provide for spousal support (alimony) in your prenup. Understand what is reasonable for both the payor and the receiving spouse.

9. Set forth the beneficiary of all retirement plans (e.g. 401(k)s, pensions, IRAs) in the event of your death. Also, clarify how the plans will be divided upon divorce

10. Clarify who will provide health insurance for your children and how the costs will be shared.

11. Clearly state what state's laws will apply and how a move to another state will affect the prenup.

12. Make sure your attorneys are identified. Have them explain each provision in the prenuptial agreement and try your best to understand what it all means. Don't be afraid to ask questions.

13. Agree upon what happens to your pets in the event of your divorce. Who gets custody and will there be visitation rights?

14. Include a clause that requires the one who challenges the validity of the prenup to pay all of the other spouse's fees, regardless of the outcome. You can also make the challenger give up something of value they might be getting under the prenup.

How does my husbands adultry effect our prenup

Robbie,

It depends on the prenup. It may have no effect whatever. Some prenups, though, have clauses in them that specifically say that proof of adultery voids the prenup. Otherwise, you have to attack the prenup on some other grounds.

Rebecca,

You are NOT required to sign a prenuptial agreement in any state. To do so waives many of your rights, and I generally recommend against it (unless of course, I am representing the spouse with substantially more assets!). If you sign it, it does not matter whether you reside in California or Alabama. If they draft it correctly and you sign it, it can be enforced.

I urge you to get counsel before you sign any such document!

when you enforce a pre nup and the issue is the interest on a mutual fund. Is the spouse entitled to any of the interest incurred during the time of the marriage and how much?

Does a prenuptial agreement take precedence over a previously written will?