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Prenuptial agreements can help during property division

As we discussed last week, some aspects of property division are complicated. If you recall, we discussed how inheritances can be considered community property or separate property depending on how it is handled during the marriage. With that in mind, it is important to understand that prenuptial agreements can help you to protect your inheritance, as well as certain other property.

When you decide to use a prenuptial agreement to dictate how property will be classified and divided, you have to make sure that the prenuptial is done in accordance with the applicable laws. The prenuptial agreement must be voluntary, not signed under duress, and not be based on fraud. In addition, both parties should have access to an attorney so they can make sure they understand the prenuptial agreement.

There are some things that a prenuptial can't cover. An example of this is child support if the prenuptial would lead to an adverse effect. Even if child support is covered in the prenuptial agreement, the issues pertaining to child support as well as child custody are subject to changes made by the court.

Prenuptial agreements also can't restrict the rights of a spouse to benefits covered under the Employment Retirement Income Security Act. This is because those rights can only be waived by a spouse. At the time of the prenuptial agreement, the two parties aren't yet spouses.

Ensuring that a prenuptial agreement protects your interests is vital before signing it. Since these agreements are often complex, having it reviewed before you sign it might help you to make sure it serves the purpose you believe it should.

Source: Texas Bar Journal, "The Wedding Planner," Judith Bryant, accessed April. 23, 2015

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