To Prenup or Not to Prenup in RI? That is the question…

While the prospect of marriage in Rhode Island is often a fulfillment of a lifetime dream for most couples, it is unfortunate to note that the majority of the marriages end up in a divorce. This is where a prenuptial agreement, otherwise known as an ante-nuptial agreement or premarital agreement comes in handy. The agreement is entered into by two parties prior to their getting into a legal relationship, including a marriage. It serves to lay down the terms of separation in the event that the two parties decide to part ways and break their marriage.

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Rhode Island prenuptial

Such terms of separation will often revolve around the division of property, spousal support and compensation. It may also consist of such other terms that relate to sharing of assets under peculiar circumstances such as adultery.  A prenup essentially allows the separating or divorcing couple to agree to proceed with the process expeditiously as the terms are already agreed upon.

A prenuptial agreement may appear extremely confusing for couples who are contemplating on getting married in Rhode Island, especially because it entails discussing the term divorce even before tying the knot. However, making the agreement does not necessarily mean that you are going to get divorced; it is simply a legal and practical step that is designed to smooth out the procedure of divorce in RI in the event that it becomes inevitable.

What are the benefits of signing a prenuptial agreement?

  • A prenuptial agreement will decrease the legal wrangling involved in  settling the terms of Rhode Island divorce. It essentially allows efficient settlement of such matters as asset distribution and financial support, while taking into consideration the best interest of both parties and their dependants, especially their children.
  • Contrary to the popular misconception, a prenuptial agreement in Rhode Island does not demonstrate the lack of trust or the presence of skepticism between a couple, and it will not lead to the failure of your marriage. Instead, it will serve to protect your financial well being by avoiding a situation where the court would decide on how your matrimonial assets are to be divided after a divorce. While you may acquire a substantial award from a court’s ruling, you may also end up completely broke.
  • The agreement is especially beneficial in the event that you are coming into the marriage with more money than your partner. However, even when you have the least amount of money in your relationship, this document can still protect you.
  • A prenuptial agreement will serve as a contingency plan. Just as you make plans for such situations as loss of employment or unexpected death, you should also make prior arrangements in anticipation of the possible failure of your marriage. While a marriage is entered with the hope that it will last a lifetime, it is important to be realistic and prepare for the unexpected.
  • It is not uncommon to find that majority of the couples who create a prenuptial agreement have immense respect for each other. This is because it allows each party to express their deepest concerns, goals and objectives, without humiliation or fear of having their feelings attacked.
  • Signing a prenup will also allow you to understand your spouse’s financial circumstances. This is because it will compel you to discuss your individual finances with your spouse; each party must disclose their entire assets and debts. This is extremely beneficial especially because you may experience financial difficulties at some point, and since most couples will tend to avoid discussing the situation, a prenup will not give you a choice. Besides, learning everything about your spouse’s finances may actually bring you close to them as you approach your wedding.

“In Rhode Island, the enforceability of a premarital agreement is governed by the Uniform Premarital Agreement Act as codified in § 15-17-6.  Section 15-17-6 states:

“(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:

“(1) That party did not execute the agreement voluntarily;  and

“(2) The agreement was unconscionable when it was executed and, before execution of the agreement, that party:

(i) Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;

(ii) Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided;  and

(iii) Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

“(b) The burden of proof as to each of the elements required in order to have a premarital agreement held to be unenforceable shall be on the party seeking to have the agreement declared unenforceable and must be proven by clear and convincing evidence.

“(c) If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility.

“(d) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.”  (Emphases added.)

We have noted that when the Legislature enacted the provisions of § 15-17-6, it “clearly evidenced the intent to preserve the validity of such agreements [and] * * * [maintain] the integrity of such agreements [.]”  Penhallow v. Penhallow, 649 A.2d 1016, 1021 (R.I.1994).  “To that end, the Legislature placed a significant burden upon the party seeking to render the agreement unenforceable-that party must prove all of the elements in §§ 15-17-6(a)(1) and (2), and must do so by clear and convincing evidence.”   Rubino v. Rubino, 765 A.2d 1222, 1225 (R.I.2001).”  Supreme Court of Rhode Island. Debra L. MARSOCCI v. David A. MARSOCCI, No. 2005-149-A.  Decided: December 15, 2006 Present:  WILLIAMS, C.J., and GOLDBERG, SUTTELL, and ROBINSON, JJ. Alfred Factor, Esq., for Plaintiff. Donald R. Lembo, Esq., North Providence, for Defendant.

Proper form is crucial

It is however essential that you ensure that your prenuptial agreement is in proper form, including being in a written format that can be reproduced. The agreement must be entirely voluntary; both parties must consent to it. Moreover, ensure that it is supported by a fair and complete disclosure of the essential facts at the time of execution.

You should also understand that in some special circumstances, the prenuptial agreement’s terms may become unenforceable in accordance with the pre-agreed terms. This is especially true with matters relating to children custody and guardianship, since such issues must be settled in the best interest of the children, and may therefore be varied to suit their specific condition and preference at the time of divorce.

Toughest state in Country to invalidate a Prenuptial!

 

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