by Michael J. Levey, Esq.
When a marriage occurs later in life, each partner has his or her own lifelong experience. Each has a substantial personal, family and economic history. In addition, each party has separate assets and liabilities, developed separately from the new marital partner. And quite importantly, each partner has a family constellation (children, grandchildren and others) separate from the new marital partner.
When thinking of marrying, the partners inevitably consider the impact the new marriage will have on their separately developed economic and personal lives. The questions which arise are:
- If my new marriage ends in divorce, how can I protect my separately developed assets?
- If my new marriage ends in divorce, will I be entitled to support, or will I have to pay support?
- If I remarry, how can I ensure that upon my death, my separate assets will go to my own, original family?
- If I make an agreement with my new partner about these subjects, will that agreement “hold up in court”?
Maine law, in the Uniform Premarital Agreement Act, provides answers to these questions. The Act permits parties to have an agreement which is made in contemplation of the marriage. Under the act, the agreement must be made before the marriage and then takes effect when the couple is married. The agreement must be in writing and signed by the parties. The agreement can be modified or terminated during the marriage if both parties agree.
If my new marriage ends in divorce, how can I protect my separate assets? The Act permits a prenuptial agreement to contain the following kinds of provisions, giving a party the opportunity to protect that party’s separate assets:
- The agreement can state that the separate real estate, accounts or retirement assets of a party are to remain the separate property of its owner, and that additions to and increases in value to any such property remain the separate property of its owner.
- The agreement can give a party the exclusive right to manage, re-invest and otherwise completely control that party’s separate assets.
- The agreement can allow a party to keep that party’s separate assets in the event of divorce.
If my new marriage ends in divorce, will I be entitled to support, or will I have to pay support? A prenuptial agreement can state that upon divorce neither party will pay support to the other. The agreement can also set forth a specific amount of spousal support. The agreement can state that spousal support will be terminated later, for example upon remarriage of the spousal support payee.
If I remarry, how can I ensure that upon my death, my separate assets will go to my own, original family? The prenuptial agreement can give a party the opportunity to pass his or her separate assets to that spouse’s original family or other loved ones upon death. A premarital agreement can prevent a surviving spouse from demanding a one-third “elective share” amount from the deceased spouse’s estate and from exercising other rights otherwise available under the law. The agreement can state that the surviving spouse is to receive a certain limited amount, and can require one or both spouses to have wills providing for this specific amount.
If I make an agreement with my new partner about these subject matters, will that agreement “hold up in court”? The Act upholds these agreements, if they are made in the correct fashion (made in contemplation of marriage, executed before the marriage, written and signed). However, the court will not enforce the agreement if it was not executed voluntarily by the parties. The court will not enforce the agreement if it was an “unconscionable” agreement and the victimized party was kept in the dark about the assets of the other party. The following suggestions help keep premarital agreements enforceable:
- Full financial disclosure: Before signing the agreement, the parties should make an accurate and complete disclosure to each other of their separate assets, liabilities and income.
- Separate lawyers for each spouse: Before signing the agreement, each party should have access to separate and independent legal advice.
Does every person who is thinking of marrying later in life need a premarital agreement? Does every person have to keep his or her assets separate from a new spouse?
Of course not. The law doesn’t require premarital agreements, but only permits them. Every person and every marriage is unique. Some couples, for very good reason, want to blend their assets during their new marriage and to permit flexibility as to what happens in the event of divorce or death. I have clients who, after reviewing the relevant facts, have written premarital agreements, and I have had other clients who have chosen not to write them. The important point is that people marrying later in life ought to give careful attention to the above considerations, so that they can choose the legal option which best fits their situation.
The information provided here is for educational purposes only, and should not be construed as legal advice or an answer to a specific legal problem.
Michael J. Levey practices family law with the firm of Levey and Wagley, P.A. in Winthrop, Maine. Go to www.leveyandwagley.com.