Important Considerations in Drafting a RI Prenuptial Agreement

A prenuptial agreement in Rhode Island should be drafted by a RI divorce attorney or a Rhode Island prenuptial agreement lawyer. In modern times, prenuptial agreements are typically referred to as “premarital agreements.” At the end of the day, whether you call these types of agreements ante-nuptial agreements, prenuptial agreements or premarital agreements, they are all contracts.

Under what circumstances should a prenuptial agreement be considered in Rhode Island?

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Premarital agreements are not right for every couple in Rhode Island and Providence Plantations! Prenuptial agreements are most prevalent in second, third or fourth marriages. They are especially prevalent in first or second marriages when one or both of the parties have children of a prior marriage or relationship. They are also prevalent in Rhode island when a future spouse has a child ot children from a prior relationship.

(Rhode Island May be the toughest state in the country to invalidate or challenge a prenuptial / premarital agreement. The RI supreme Court sitting in Providence has made  ante-nuptial agreements very difficult to set aside! (perhaps nearly impossible)  The seminal case concerning the enforce-ability of prenups in RI is Marsocci v Marsocci.

Marsocci  stands for the proposition that, pursuant to  Rhode Island General Law  § 15-17-6,  in order for a prenuptial agreement to be unenforceable, it must be both involuntary and unconscionable. (Unconscionable means totally and completely unfair)  see also: http://rhodeislanddivorcelawyerarticles.com/rhode-island-toughest-state-in-country-to-invalidate-a-prenuptial/ 

Is there any difference between a prenuptial and a premarital agreement in Rhode Island ?

No. Premarital agreement, ante-nuptial agreements and prenuptial agreements are all different terms for the same document and are used interchangeably.

Preserving assets for children in a RI Prenup

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When a person has a child from a previous relationship and is considering a marriage, he often wants to insure that his child will inherit hard earned assets. A person wants to insure that their assets will go to their children rather than their new spouse or the new spouses’ children. This is perhaps the best rationale for a prenup in RI.

Many parents fear that their hard earned assets that were acquired before the marriage will go to their new spouse or her children upon divorce or death rather then their own child.

Estate planning can be a crucial element of a good prenuptial agreement in Rhode Island!

Without protection through estate planning, will, trust or a prenuptial agreement, a substantial portion of your separate assets may go to your new spouse upon divorce or upon your death. Estate planning can also be a very important element in premarital agreements. I strongly advise that you retain a Rhode Island divorce and family law attorney to draft or represent you concerning the execution of the premarital agreement.

Premarital agreements are often entered into when either husband or wife has acquired significant premarital “separate” property. In many cases, one of the spouses will have a more substantial estate  and assets than the other spouse.

Be careful! The suggestion of a prenuptial can be a very emotionally charged issue!

Tread  carefully when suggesting a premarital agreement with your future spouse especially in a first marriage! Often, your future wife will be very upset with the suggestion that they should sign a premarital agreement. This is a very delicate subject. It could potentially imperil the entire relationship. Some people feel that premarital agreements run contrary to the marriage covenant. Others are against a prenuptial because they believe that in essence, it is planning for divorce when marriage is ideally “forever.”

Negotiate the prenuptial well in advance of the wedding!

It is a very bad idea to suggest a prenuptial at the last minute. You should propose the prenuptial well in advance of the wedding. The last thing you want to do is negotiate a complex contract a week or two before the wedding. It can be unseemly to be contacting a RI divorce lawyer  or Providence family Court attorney right before the wedding and can put unfair pressure on your spouse.

What are standard provisions put into a simple prenuptial agreement?

The most standard prenuptial agreements simply protect a person’s separate premarital property. In many instances the parties waive all right title and interest to the premarital property of the other party.

The most simple, prenuptial agreements simply state that all property that the parties owned prior to the marriage would be their separate property free and clear of all claims of the other party.Prenuptial agreements can essentially state any provisions that the parties desire and the law allows.

Are both the prospective wife and husband required to get an attorney / lawyer?

No. The parties are not required to have an attorney / lawyer to review the prenuptial in Rhode Island(RI). Prenuptial agreements in Rhode island are still valid and enforceable even if one of the parties had an attorney draft the agreement and the other party did not have a lawyer review the agreement.

(Unconscionable Prenuptial may be Enforced in RI Unless Involuntary & No Disclosure http://rhodeislanddivorcelawyerarticles.com/unconscionable-prenuptials-enforced-in-ri-unless-involuntary-no-disclosure/ )

What are the most important elements of a good ante-nuptial agreement?

The most important facet of a good premarital agreement is clarity. The second must important facet of a prenuptial is complete and full disclosure.

Both parties must disclose all assets and liabilities.

If the parties have not disclosed material and substantial assets and liabilities, the prenuptial may not be enforceable. Husband and wife should attach a financial statement as an exhibit to the prenuptial. If the parties do not properly disclose their assets and liabilities, then it is questionable whether the parties agreed to anything because they do not know what they were agreeing to.

Retirement Accounts, 401k, 403(b), pensions

You may consider a provision concerning 401k, 403(b), Stock Options, Pensions, Retirement Accounts as well as the increase in value, additions and or reinvestments of such retirement accounts after the marriage. In order to waive marital rights to certain retirement accounts you may need a provision under IRS guidelines agreeing that your spouse will sign appropriate forms to waive or relinquish spousal benefits.

Waiver of Alimony

Some premarital agreements in RI require one or both spouses to waive their rights to alimony or temporary alimony. This can be a crucial portion of a prenuptial agreement. This is often also the most contentious area of negotiations.

Real estate

Some premarital agreements address issues concerning Real Estate especially separate real estate of the parties. You want to discuss with your  Rhode Island family Law lawyer whether or not your spouse will be agreeing to waive their right to elect against the will of the other upon death and waive the statutory life estate. This is very important in Rhode Island. You may want to consider putting the real estate in trust. This is all very complicated and should not be done without an attorney

Jointly Held – Marital property.

You need to consider whether you want the agreement to include how marital property will be divided upon divorce. Some people agree that all marital property will be divided 50/50 upon divorce or separation. Other agreements are silent on this issue.

Choice of Law:

The parties should state under which law the prenuptial agreement should be interpreted. If the parties reside in Rhode Island then they should have Rhode Island law apply in the future.

Debt, credit cards, premarital debt, student loans

Will each party be responsible for separate premarital debt. Who will be responsible for joint premarital debt? Will the parties agree to split joint marital debt 50-50? Who will pay individual / sole debt incurred during the marriage?

Life Insurance

Is either party agreeing to maintain a life insurance policy for the benefit of the other spouse? This is often done as a way to make sure the spouse will collect upon death even if the person’s estate plan otherwise excludes the spouse. Will the life insurance be required to be maintained after the divorce or separation?

Gifts

Who will get to keep gifts between the parties? What will happen to joint gifts or gifts given to one person but not the other. Who will get the engagement ring, wedding band, jewelry, art etc?

Severability clause

Most good premarital agreements contain a severability clause such as the one set forth here: “SEVERABILITY. If any provision of this Agreement is held to be invalid or unenforceable by a Court of competent jurisdiction, this Agreement shall be construed as if such illegal, invalid or void provision were not a part hereof and the validity of the remaining provisions shall be unaffected thereby.”

Legal fees upon divorce. Will either party be required to pay the others legal fees as part of the divorce?

Some prenuptial agreements address the issue of legal fees in a potential divorce.

Acknowledgments of counsel or the opportunity to retain a lawyer and acknowledgment that agreement is freely and voluntarily entered into.

It is important that the parties acknowledge that they carefully read the agreement, that they signed it freely and voluntarily and that they believe that the agreement is fair and equitable to them.

Many agreements contain a paragraph similar to this: ACKNOWLEDGMENT. The parties have, during a series of conferences between themselves, mutually agreed upon the arrangements set forth herein. Each party hereto declares that he or she has had the opportunity to seek independent legal advice by counsel of his or her own selection and that each is satisfied as to this agreement’s fairness. The wife has retained Attorney X to represent her. The provisions of this Agreement and their legal effect have been fully explained to the parties and each party acknowledges that he and she believes the Agreement is fair and equitable, and is freely and voluntarily entered into.

Integration and modification provision.

It is crucial that there are no side agreements or verbal agreements outside of the four corners of the documents. An integration clause is an important facet of a prenuptial agreement.

Cooperation provision

A Cooperation provision is essential to a good antenuptial agreement.

“COOPERATION. The parties hereto shall at any time, and from time to time, execute and deliver all such deeds and other documents as may be necessary, and do all such things as the other of them, his or her heirs, executors or administrators shall reasonably require for the purpose of giving full effect to this Agreement. Each of the parties hereto shall release and quitclaim unto the other, or to such others as he or she respectively may request, all of his or her rights of courtesy or of dower. It is the intention of this clause to permit and empower each of the parties hereto to deal with his or her own separate property now owned or hereafter acquired, in all respects, except as limited by this Agreement, as if each party hereto were single.”

Disclosure Provision

“DISCLOSURE. Each of the parties has made a full disclosure to the other of all property, assets and liabilities owned or otherwise held by each respective party, as listed in Exhibits “A,” “B,” “C,” and “D” attached hereto. The parties hereby acknowledge that they are aware that in the future the financial circumstances of either or both of them may be altered in some way, whether substantially, directly, indirectly or otherwise.”

Notary and Attestation of Counsel.

The agreement must be signed in front of a notary and if the parties both have attorneys they may want to include an attestation of counsel paragraph that both lawyers

 

David Slepkow is a Rhode Island Lawyer concentrating in divorce, family law, restraining orders, child support, personal injury law, child custody and visitation. David has been practicing for over 17 years and is licensed in Rhode Island and  Massachusetts . Free initial consultations. You can contact attorney David Slepkow by going to Rhode Island Divorce Family Lawyer

Statistics

“15% of people who have been through a divorce regret not having a prenuptial agreement in place.44% of singles believe that having a prenup is a good idea before entering into a marriage. The three top reasons why a prenuptial agreement is put into place is to provide protection of separate property, alimony/spousal maintenance, and the division of property.” http://brandongaille.com/18-interesting-prenuptial-agreement-statistics/

Also please visit: Rhode Island Law Articles

Rhode Island Attorneys legal Notice per RI Rules of Professional Responsibility:

The Rhode Island Supreme Court licenses all lawyers in the general practice of law, but does not license or certify any lawyer or attorney as an expert or specialist in any field of practice.

 

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