The role of a counsel for a valid prenuptial agreement
The prenuptial contract establishes benchmarks to delimit the proprieties, in order to clarify the ownership of the goods acquired during marriage: they are common goods or they belong to one or other of the partners.
The prenuptial contract has its origins in France, were it was conceived once with the assimilation of the Code of Napoleon, in 1807 and later by the Calimah Code, in 1817, the Civil Code in 1864 and the one from 1924 to 1954.
But what are the benefits of a prenuptial contract? The most important and almost the only advantage is that such a contract spares the couple from additional expenses for the lawyers’ commission, as the divorce remains a simple formality. All the aspects related to the possibility of a divorce can be stipulated in the prenuptial contract.
Beyond the issues that may seem petty, the prenuptial contract manages the money and the time of the future spouses.
From a legal standpoint, the prenuptial arrangement can be as explicit and long as it is needed and can cover several aspects. One of the most common issue concerns the family assets.
The agreement may cover the responsibilities of spouses regarding the care of children from previous marriages or those who will be born. This aspect can have a considerable meaning in court when one of the spouses intends to give up his career and to devote himself to the growth of children.
The contracts should be written in simple English, defining concretely and clearly the way, in which the goods will be shared in case of a divorce, mentioning clearly what represents the common propriety and what stays separate. Each part should have his independent counsel and the lawyers should explain detailed everything. The advice of a counsel should be a requirement for a valid prenuptial agreement.
The role of a counsel is very well defined. He will help his client to take the best decision regarding his interest, explaining in more simple and friendly terms than a lawyer does, the most common issues that may occur.
The counsel will consider both the legal aspects and the marriage problems or concerns. His role is to eliminate any doubt and to clarify things. His advice may prove to be valuable regarding the conditions stipulated in the prenuptial contract.
The couple tend to exaggerate or to minimize certain aspects of the contract, ignoring important issues, while emphasizing the insignificant ones. The counsel will determine them to take into account all the possible situations, regarding their marriage and their goods.
For example, many couples don’t realize that the diplomas of higher education may also justify a prenuptial contract. The MBA’s worth a fortune. If one of the partners is a doctor and he becomes a specialist, this adds value.
Besides his license, his practice is also valuable and will become even more valuable during the marriage, which makes it become marital property. If he plans to go to school during marriage and his partner will help him to pay for studies, this is also considered a common property.
An independent counsel will expose several cases, mentioning the facts and consequences of each. He will act like a friend who has the knowledge of a lawyer.
Everything one of the partners has owned before marriage is considered to be a separate property, it isn’t needed a prenuptial contract so that things stay that way. This includes also proprieties or a bank account that he wants to keep on his name.
If it is about a bank account, he mustn’t deposit anything in it that was gained during marriage- this is called “mixed funding.”
Also, everything that was inherited before or during marriage represents a separate property; it includes the gifts from a third party to one of the partners as an individual during marriage.
A lawyer will also explain all these issues, but he will use more professional terms and general situations. The counsel will present to the couple particular cases and circumstances, discussing with each, separately, in order to find the most suitable solution for both.
Further, the things will be legalized by a lawyer, with fewer expenses.
It would be perfect for the couple to start the negotiations with six to eight months before the wedding and to sign the contract with at least one month before. The prenuptial contract is a negotiation that involves emotions, so the spouses shouldn’t postpone it until the wedding day.
1. Prenuptial Agreements: How to Write A Fair And Lasting Contract by Katherine E Stoner Shae Irving
2. The Complete Prenuptial Agreement Kit by Edward Haman