What is a Prenuptial Agreement?

by Attorney Christopher E. Heberg

Happy couples who decide to get married rarely consider what will happen if my fiancé and I were to divorce. Many times people bring an asset, like a home or 401k, into a marriage and they wish to protect, and keep that, asset as separate property. If this is a consideration, they should consider a prenuptial agreement.

Most people have heard about a pre-nuptial agreement, but don’t really know exactly what it is. Basically, a pre-nuptial agreement is a contract between two parties, entered into before marriage which specifically identifies how certain property will be treated during the marriage, and upon the unfortunate dissolution of the marriage.

The contract identifies all assets that each party is bringing into the marriage. Some or all of a person’s assets may be labeled as separate property. Generally, the characterization of the asset continues during the course of the marriage and dissolution of the marriage. The prenuptial agreement can also include a description as to how those assets are treated during the marriage. For example, if one party owns a rental home, the pre-nuptial can describe who is entitled to the rental income and how that income is to be characterized.

A pre-nuptial agreement is a binding contract and must be taken very seriously. Whatever the parties agreement, the contract will be enforced should they get divorced. Also, in order for a pre-nuptial agreement to be valid and enforceable, it must comply with the very specific requirements of Rhode Island law. Therefore, it is always best to seek the advice of an experienced attorney if you are considering this type of agreement.

You might be wondering what happens if you are already married and you didn’t sign a pre-nuptial agreement but are still interested in protecting yourself? Well, it may still be possible to protect your assets. If a married couple agrees, they can enter into a post-nuptial agreement. Post-nuptial contracts are very similar to pre-nuptial contracts and generally are formalized in accordance with the same requirements, with one exception, they take place after people are already married.