Couples who are engaged to be married usually have their heads in the clouds, eagerly looking forward to all the best parts of marriage. It’s difficult to shift focus to something as serious as property rights in the possible event of divorce. But couples who plan to marry should think about these issues before they get married, because failing to plan in advance can lead to heartbreak down the road.
A prenuptial agreement is a legally binding contract that is made with a view toward what will happen to the spouses’ respective property when they marry and divorce. It sets forth a plan for how the spouses will divide up their assets if they should happen to divorce or, occasionally, if one of them dies. Prenuptial agreements are concerned with the division of property, which is defined as any interest in real property (like land or buildings) or personal property (tangible objects like jewelry and automobiles or abstract objects like retirement accounts).
Prenuptial agreements are also known as premarital or antenuptial agreements in some jurisdictions.
If any of the following scenarios apply, couples should consider getting a prenuptial agreement:
This list is non-exclusive. If you have any doubts about whether you should enter into a prenuptial agreement,contact an experienced Vermont family law attorney for more advice.
Prenuptial agreements in Vermont can address some or all of the following issues:
Vermont law does not preclude pre-nuptial agreements from establishing child support for a child born outside of the marriage. However, Vermont’s laws and case decisions do not mention anything about using prenuptial agreements to provide for children born as a result of marriage.
This doesn’t mean that a prenuptial agreement can’t contain an agreement about child support and custody. If the parties divorce and decide to abide by the terms of their prenuptial agreement, they can self-enforce provisions about child custody and support. However, if they disagree and wind up in family court, a judge may give little to no consideration to what the prenuptial agreement says about these topics.
The Uniform Premarital Agreement Act (“UPAA”) was initially developed in 1983 by the National Conference of Commissioners on Uniform State Laws in an attempt to harmonize the law surrounding prenuptial agreements and to ensure legal conformity across the fifty states. To date, most but not all states have adopted the UPAA. Vermont is one of the states that has not adopted the UPAA.
Instead of following the UPAA, Vermont has its own rules. For a prenuptial agreement to be legally valid in Vermont, all of the following requirements must be satisfied:
All of these statements must continue to be true throughout the life of the agreement.
Ultimately, marital property settlements have to be decided by a family law judge. Title to property is immaterial. The judge will make an equitable distribution of property “without disturbing separate property,” meaning that the judge will respect the terms of a valid prenuptial agreement. In rendering a decision about marital property that isn’t covered in the prenuptial agreement, the judge will consider all of the following factors:
Yes. After the parties are married but before they divorce, they can revise the prenuptial agreement in what is known as a “post-nuptial agreement.” Both parties simply have to agree and the new agreement must be in writing. They can stay married after entering into a post-nuptial agreement.