Will a Montana court enforce your premarital agreement?
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Congratulations, you're engaged! But have you considered what will happen to your assets and property if your marriage ends?
These days, many couples include drafting a prenuptial agreement on their wedding planning list. It might sound unromantic, but making sure you and your partner are on the same page regarding finances and future plans can help you prepare for your married life together. And, if your marriage ends, you will have arranged to divide your property and income in a way that makes sense for both of you, rather than leaving it up to a judge.
This article provides an overview of premarital agreements in Montana. If you still have questions after reading this article or you want to get advice about drafting a premarital agreement, you should contact a Montana family law attorney.
What Is a Premarital Agreement?
A premarital agreement, also called an antenuptial or prenuptial agreement, is a contract between future spouses that sets out the rights of each spouse in the event of divorce or death. A premarital agreement becomes effective only when you and your spouse get married.
The major benefit of a premarital agreement is that it allows you and your future spouse to resolve the challenging issues of money, property, and prior and future financial commitments before you get married, just in case your marriage ends. Without a premarital agreement, Montana divorce laws will determine how your property is divided, which can result in lots of time and money wasted in court.
Who Should Get a Premarital Agreement?
Premarital agreements are especially common among:
- people who have children from a prior marriage and want to protect those children's interests
- people who have been through a messy divorce previously and want to make sure it doesn't happen again, and
- people with substantial assets, particularly if one spouse brings significantly more to the marriage than the other.
However, even if you don't belong to one of these groups, you might still find a premarital agreement useful if you want to decide for yourself what happens to your assets and property if your marriage ends.
What Issues Can a Montana Premarital Agreement Cover?
In general, premarital agreements can cover any issues relating to property, assets, and debts belonging to you or your future spouse.
For example, your premarital agreement may cover:
- how the assets each of your brings to the marriage will or will not be combined or divided
- how to pay debts incurred before marriage
- how the marital home and marital property will be divided
- whether income will go into joint or separate bank accounts
- whether gifts, trusts, or inheritances will be considered marital or separate property
- whether either spouse will receive alimony (also called "maintenance") in the event of divorce
- how death benefits or life insurance proceeds will be distributed, and
- how matters such as medical care, disability insurance, and long-term medical care will be dealt with.
Can a Premarital Agreement Determine Child Custody and Child Support in Montana?
In Montana, a premarital agreement may include language about what you and your future spouse want to happen to any children that you have during your marriage, including your preferences about custody and child support. However, the courts don't have to follow the terms of your agreement. Even if you and your spouse agree to custody of and child support for future children in your premarital agreement, either of you can later ask the court to decide who should have custody of your children and how much child support must be paid.
For more information about child custody in Montana, read Child Custody in Montana: The Best Interests of the Child. For more information about how child support is calculated in Montana, read Child Support in Montana.
How Can I Ensure my Premarital Agreement Is Enforceable in Montana?
Like most states, Montana has adopted the Uniform Premarital Agreement Act ("UPAA") (MT Code Ann. § § 40-2-601 through 40-2-610), which determines whether premarital agreements are enforceable in Montana.
First, a premarital agreement must be in writing to be enforceable.
Second, under the UPAA, both you and your spouse must enter into the premarital agreement "voluntarily." This means that no one coerced you into signing the premarital agreement. To make sure that both you and your future spouse enter into the agreement voluntarily, you should both have access to your own lawyers. This ensures that you are both informed of all of your legal rights. There should also be enough time before your wedding date for both you and your future spouse to review, discuss, and revise the premarital agreement before signing it. This ensures that neither of you sign the premarital agreement under pressure of the fast-approaching "big day."
The third and final requirement is that the agreement must be "conscionable" when it is executed. To be "conscionable," the UPAA requires that both you and your future spouse disclose all of your property, including both assets and debts, to each other prior to signing the agreement. If you decide not to fully disclose your property to each other, then you have to include a waiver of that disclosure in the premarital agreement. Failing to fully disclose assets has often resulted in courts refusing to enforce premarital agreements.
Can I Change or Terminate a Premarital Agreement After Marriage?
After you marry, you can change or terminate your premarital agreement. However, both you and your spouse have to agree to change or terminate your premarital agreement, make the changes in writing, and sign it.
Because premarital agreements are complicated and impact your future rights as a spouse, you should always consult an experienced Montana family law attorney before signing one.