Let’s face it, no one likes the thought of a prenuptial agreement when they are planning a wedding. The most common argument against them is that contracting for the possibility of divorce creates negativity around what should be one of the happiest times in a person’s life. Asking for a prenuptial agreement is sometimes viewed as selfish; but, given that nearly half of marriages end in divorce, both parties should seek protection. A prenuptial agreement can provide protection in the event of a death, disability, infidelity, or decreased career opportunities due to relocation or child rearing.
Kentucky law defines “marital property” as any asset acquired during the marriage. All property owned by either party is presumed marital. Either party may overcome this presumption by proving: 1) that the assets was acquired before the marriage, 2) was acquired in exchange for non-marital property, 3) was obtained by gift or inheritance, 4) was acquired after a Decree of Legal Separation, 5) was not acquired as a result of joint efforts, or 6) are excluded from the marital estate by a valid agreement.
Many people believe their lack of assets or low wages render a prenuptial agreement unnecessary. Amazon CEO, Jeff Bezos, is a prime example of why anyone could benefit from a prenuptial agreement. Bezos formulated his plan to begin Amazon before he married, and although worth nothing, he may have preserved the entire asset as his non-marital property if he had a valid prenuptial agreement.
Even with a prenuptial agreement, enforcement is not guaranteed. The Kentucky Supreme Court outlined three factors that determine the enforceability of a prenuptial agreement: (1) whether the agreement was obtained through duress, fraud, mistake, misrepresentation, or nondisclosure of material facts; 2) whether the agreement was unconscionable at its consummation; and 3) whether changed circumstances since the signing of the agreement make its enforcement unfair. Gentry v. Gentry, 798 S.W.2d 928 (1990).
The bottom line is that anyone getting married should strongly consider obtaining a prenuptial agreement for their own protection, but no one should sign a prenuptial agreement without sufficient time to consider its terms with a competent lawyer.