Prenuptial Agreements: Yea or Nay?

Attorney Brent Cashatt


“I love you so very much. Will you marry me?”

“Yes, darling.”

“Great. But first, will you sign this piece of paper?”

Cupid, it seems, has put on his accounting eyeshade in suggesting a prenuptial agreement for his intended bride. It could have a chilling effect.

Comfort level aside, a prenuptial can serve a purpose, said Brent Cashatt, an attorney in the East Village who specializes in family law.
Primarily, Cashatt said, prenuptial agreements come into play with second marriages. The prospective spouses may be older and have individually built up assets that they wish to protect. This would especially be the case where they already have adult children and are making, or at least considering, plans to leave some of their money to the next generation.

When a first marriage is involved, Cashatt said a prenuptial typically would come into play if one side to the marriage has access to – currently or in coming years – substantial family wealth. Family members may desire to shield that some or all of that wealth should the marriage falter (50% of all marriages fail).

Iowa codified its law on prenuptials starting in 1992. It’s pretty straightforward legislation that spends more time discussing ways it can be revoked: that it was not agreed to voluntarily, that the agreement was unconscionable, or that the party being asked to sign was not presented with reasonable disclosure of property or financial obligations of the other spouse.

To head off problems such as this, Cashatt said he will ask that the party being asked to sign the agreement mark on the documents areas of concern.

“I ask the other side to make handwritten changes, and share it,” he said.

Cashatt also likes to have the other side to the agreement sign it outside his office. That just gives the pact a little more sense of being a fair deal that was not entered into under duress.

Prenuptials will sometimes carry sunset provisions. The longer a marriage lasts, the fewer the restrictions on assets.

Prenuptial agreements can also protect each party from being responsible for any debts that existed prior to the marriage. Without an agreement, these debts can become marital property in some states if there’s nothing that defines them otherwise.

Cashatt said more people don’t enter into prenuptials because they are difficult subjects. 
“It’s pretty icy cold water,” he said. And he’s seen more than a few instances where a prenuptial is drafted, signed and never put into place.

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