Family Law – Prenuptial Agreements

One of the issues that people considering a prenuptial agreement should be
discussing is what provisions, if any, should be made in that agreement related to the
parties’ future marital residence.

After their marriage, if they are going to live in a house that was owned by one of
them before the wedding, will that house be transferred into joint names? If not, when
the owner dies, will that house be left to the survivor? If not, will the surviving spouse
be allowed to live in the house for some period of time before the deceased spouse’s
estate can sell the house? If the surviving spouse does remain in the house, who will
be paying the expenses while that spouse lives in the house?
If the parties are going to live in a house titled in joint names after the marriage,
and if the house was either purchased with the separate funds of one of them or
previously owned by only one of them, if the marriage is terminated by a divorce, how
will the equity in that house be divided? Will the spouse who owned the house before
the marriage be allowed to remain in the residence while the other spouse has to
vacate? If the parties had children after the marriage, will this have any bearing on who
remains in the house and who leaves? Will the parties want the house to be sold and
will either party be given an option to buy out the other party if they decide to separate
and get divorced? Will each party get back what they contributed to the down payment
or acquisition of that jointly owned home before any equity above and beyond those
contributions will be divided? What if someone else provided the down payment to
purchase the home – will they be repaid before the parties divide the equity in the

These are just some of the issues that can be dealt with in a prenuptial
agreement in order to avoid arguments and possibly litigation after one spouse dies or
when the parties’ marriage terminates as a result of a separation or divorce. One of the
major reasons for having a prenuptial agreement is to have issues such as these
discussed and resolved before the marriage so that there is less chance of a
disagreement arising in the future.

By: David Gutin