Maybe the law of prenups in Tennessee is not the most Shakespearean of topics, but knowing the benefits and drawbacks of entering an antenuptial agreement in Tennessee can help make an informed decision about whether or not to entera prenup prior to marriage. Previously, I provided an introduction to the laws pertaining to prenuptial agreements in Tennessee. While I provided information and insight into what an antenuptial agreement can and cannot do and how to enforce one, I did not discuss in great detail why one may or may not enter a prenuptial agreement.
Pros to a Prenup a.k.a. “To Prenup”
To answer the five million dollar question (yes, there are prenuptial agreements that have this level of consequence), let’s start with a few reasons an individual may want to bite the bullet and enter a prenup prior to marriage. First, individuals who have previously been through a divorce on less than harmonious terms are familiar with the possible conflict, stress, strain, and tension, that accompany contested divorces. Through a prenuptial agreement, you can avoid many potential conflicts before they start by addressing the issue of property division and alimony on the front end. You can also save money that you may later need to spend on an attorney with a well-drafted antenuptial agreement.
Second, if you are entering a marriage with substantial property ownership-specifically, income producing property, then you may want to consider a prenuptial agreement. Also, business owners may want to consider a prenuptial agreement to ensure that the business and its income remains their separate property. Carefully defining what will be marital and separate property prior to the marriage and how you would like to divide said property can provide each party with clarity before entering the marriage. Also, a prenup can remove the financial incentive for a spouse to marry (although, the reverse could be true as well – it may relieve the “benefiting” party of the risk of consequence for divorce).
Also, a prenuptial agreement allows the party to enter into any special agreement they may be considering prior to a marriage. Perhaps one party has a cat (or six) of which they would like to ensure full custody following a divorce, this could be addressed in a prenuptial agreement.
Finally, since financial issues are a primary source of strain in many failing marriages, a prenuptial agreement provides a process whereby there is full disclosure of financials up front, and can help the future spouses get on the same page regarding finances. It could be argued that the divorce rate would be lower if every couple sat down together prior to marriage, disclosed assets, debts, and income, and planned their financial futures together. A prenuptial agreement is a means to force the parties to ask the hard questions at the beginning.
Cons to a Prenup a.k.a. “Not to Prenup”
There’s no avoiding it, prenuptial agreements are not romantic. They are not fun. Sitting down and discussing how to address issues in the event of divorce before you are even married is not on anyone’s list of favorite pre-wedding rituals. If you believe discussing the topic with your future spouse may have a negative impact on the relationship, then a prenuptial agreement is probably not for you.
Also, state law may provide enough protection for you in the event of divorce anyway. Tennessee statutes clearly defines what is considered “marital property” and what is considered “separate property” in the event of a divorce, and courts are tasked with fairly and equitably distributing all marital assets and debts. There are also statutes directly addressing how alimony is to be categorized and determined. Therefore, even without a prenuptial agreement, state law may be enough to provide the peace of mind you need in the event of divorce.
Additionally, prenuptial agreements cannot address child custody and child support. The courts will retain jurisdiction to make child custody determinations, and child support in Tennessee is established through a set of regulations known as the Tennessee Child Support Guidelines. Parties may not enter private agreement for child support in Tennessee. So while you may avoid the conflict of fighting over property and alimony through a prenuptial agreement, you may still wind up in a stressful custody dispute.
Finally, prenuptial agreements may not properly address unanticipated changed circumstances. Since antenuptial agreements are typically based on the circumstances at the time of entry of the agreement, changed circumstances can have detrimental consequences to one or the other party. Also, if a prenuptial agreement does not clearly and explicitly address how to resolve issues, it can create more confusion and conflict down the line, resulting in a court challenge, and increased attorney fees.
It is my opinion that there are scenarios where parties should absolutely consider and could benefit from the entry of a prenuptial agreement. However, no two situation is exactly alike. Fully weighing the benefits and drawbacks to entering a prenuptial agreement can help answer that ever elusive question – to prenup, or not to prenup?
Disclaimer: Ryan C. Smith’s legal blog is for educational purposes only, as well as to provide general information regarding Tennessee law, not to provide legal advice. By reading the blog, it is understood that there is no attorney-client relationship created between you and attorney Ryan C. Smith, and that the blog does not constitute legal advice.
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