Divorce Lawyer: A Problem With Pre-Nuptial Agreements

One of the leading causes of stress in marriages today is financial problems. Therefore, many spouses to be decide to get a pre-nuptial agreement in order to protect themselves in the event of a breakup. This is also true of spouses that are already married, if they decide that they would like to stay together but have reasons to separate their finances. It is important, however, that the pre-nuptial agreement does not do more harm than good. It is therefore crucial to carefully consider what you would like in the pre-nuptial agreement along with a divorce lawyer both during and after the drafting process.

One of the biggest problems with a pre-nuptial agreement for a divorce lawyer is that parties are contracting out of any community regime whereby the parties each have their own finances. In fact, this is often the very reason that parties decide to want to have an agreement that keeps the spouses from having joint funds and debts. The reason that this is such a problem for the spouses is that what happens if you have a scenario where one spouse is significantly wealthier than the other spouse.

For example, a wealthy spouse seeks to protect their income with a pre-nuptial agreement, whereby each spouse’s property and obligations remain the separate property and obligations of that spouse. A couple of years after this document is executed by the spouses, the wealthy spouse decides to take an annual, expensive trip on vacation and pays for the other spouse’s trip, as well. When the couple breaks up, the wealthy spouse’s divorce lawyer may request reimbursement from the other spouse for any money that the wealthy spouse contributed for the other spouse’s benefit. Because everything between the spouses is separate, the attorney might argue that anything of value passed from the separate property of one spouse for the separate benefit of the other spouse. Therefore, the attorney may then argue that the wealthy spouse is entitled to reimbursement for any gifts or expenses paid to for the separate benefit of the other spouse, which, if a large enough amount is owed, could push the other spouse into bankruptcy.

While this example may be seen as somewhat extreme, it should not be underestimated the impact a pre-nuptial agreement could have. Also, while a court may choose not to enforce any provisions that could lead to a great injustice being done, this also is not a safe assumption.

The question of how to get around any such provisions is difficult because it can defeat the purpose of the pre-nuptial agreement. If your clients are worried about such clauses affect them, perhaps a partial pre-nuptial agreement would be best to prevent a divorce lawyer from hurting the other side in the event of a split. This would have to be worked through very carefully with the law of your state, but it would attempt to make sure that there is not complete separation between the parties in the document. This should allow for the natural ebb and flow of the finances of being married without the negative consequences.

The above material is intended for information purposes only. It is not intended as professional legal advice and should not be construed as such. Attorney William H. Beaumont practices in New Orleans, La.