Until recently, prenuptial agreements were considered the province of the wealthy, and in many states were exclusively an estate planning tool, and except in community property states were not commonly utilized with respect to marriage and divorce scenarios. With the advent of equitable distribution, in those states which were previously property states, prenuptial agreements came to be utilized with respect to aspect of the marriage and divorce.
Prenuptial agreements today, are drafted to deal with three operative periods: Marriage, Divorce and Death.
With respect to the marital time frame, agreements deal with such topics as the utilization of earnings, the payment and/or allocation of expenses, health care and disability, insurance, debts, the effect of taxes and tax returns and children and the parents.
With regard to the divorce time frame, agreements deal with issues of property division, (definitions of “Separate” and “Marital Property”), as well as categorizing specific types of assets, including businesses, professional practices, real estate, gifts between the parties and from third parties, trust principal and income, and pension rights. Spousal support, child custody and child support as well as other related matters are also dealt with in the divorce time frame. (With respect to custody, visitation or child support the court reserves the right to have the final decision with respect to those issues, considering the best interest of the children.)
In addition, the agreement should deal with issues of inheritance, rights of election, waivers of rights of election, life insurance, waivers of life insurance, wills, trusts and the disposition of property in the event of the death of either spouse.