Many family law commentators across the country have been noting for several years now the growing acceptance of prenuptial agreements and marital contracts generally (including postnuptial agreements) among an ever-larger American audience.
For many, the stigma once undeniably associated with a written understanding regarding asset preservation and division in the event of a divorce has largely, if not entirely, disappeared. Replacing the idea that a prenup is antithetical to love and marital bliss is the more neutral and well-considered realization that a premarital contract can serve optimally well as a planning device regarding assets and their distribution. For many couples, such an agreement actually goes far toward providing peace of mind and certainty concerning their property and assets. That is equally true of couples just starting out in life together, high-asset marriages or couples entering a second or subsequent marriage.
Despite the growing popularity of premarital agreements, though, some people will simply never be convinced to discuss one with their intended mate, much less insist on negotiating and ultimately executing one.
In such an instance, is there an alternative avenue — a legal instrument — that can step in and accomplish some of the same goals as those that can be achieved through a prenuptial agreement?
The answer to that question is that, generally, there is another avenue that can help a party identify and protect specific assets, and it is centered squarely in the creation of one or more specialized trusts that can be established by a person before (and sometimes following) marriage.
That “yes” answer must be qualified, though, given that trusts can be complex creatures and that state laws and judges’ inclinations might differ regarding a certain type of trust.
A logical step for any person interested in identifying and preserving assets and property is having a candid discussion with a family law and divorce attorney well experienced in property division matters.
Source: Barron’s, “Divorce trusts,” Tatiana Serafin, May 18, 2013