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None of us marry someone expecting to divorce him or her later. Yet each year, 1.2 million couples call it quits in the United States. And of those, only 5% ever go to trial, according to the American Bar Association.
Most of us would prefer an amiable separation, or at least an out-of-court settlement. Divorces are painful prenuptial agreement enough without courtroom confrontations.
 One way to potentially save yourself from a messy court fight is if you and your soon-to-be partner sign prenuptial agreements.
While one judge complained that nuptial agreements can have a "chilling effect on the personal relationships of the parties," prenuptial agreements -- those signed before a marriage -- can also ease the pain of divorce, preserve family ties, and even make a marriage run smoother. These agreements also can be signed long after the wedding takes place.
Do you really need to do this?
Before you bring it up, consider the consequences. Do you really want one? Or is it your family or friends who have encouraged you to do so?
Be very clear in your own mind what you want to accomplish and why. Then tell the truth. "I want my children to know that I haven't abandoned them financially." "I want to give you protection against a fight from my first family." "I ran my business for 10 years without any interference or ownership by others. I need to keep that autonomy to stay motivated."
What if your spouse won't sign? That's actually the benefit of these agreements; you get things out in the open before it's too late.
A nuptial agreement is a contract signed by both parties and notarized. In most states, it is acknowledged as if it were a deed. Nuptial agreements need not be filed with the court, and are not reviewed before signing. But they can be set aside for fraud, duress, failure to disclose, unfairness, and failure to be adequately represented.
By far, the failure to disclose is the biggest issue. All states require that there be full disclosure, and that each spouse be fully aware of what they are getting and giving up. If either side is not represented by counsel, or even poorly represented, these agreements can be set aside.
In the nuptial agreement, either party can waive any rights given by law. Yet one spouse can voluntarily give to the other as much as either wishes. If there is an ongoing business or other important income-producer, the agreement can state who will run the business, handle the investments and receive the income or proceeds from it. The agreement can state that funds from a certain source belong to both parties equally or in different proportions. The parties can even agree on how they will spend certain sums throughout the course of the marriage.
With a nuptial agreement, a person can disinherit a spouse, settle property rights or exempt a major asset like the family business from the marital estate. Without such a signed agreement, most states give a surviving spouse a minimum of one-third of the total assets.
Where assets were accumulated during a first marriage, the children of that marriage may lose one-third of their inheritances, even if the new marriage lasted for only a few weeks. In some states, the heirs to an estate can continue a divorce proceeding that began before the deceased died as a tool to prevent the surviving spouse from receiving any of the inheritance. A nuptial agreement prevents such bloody battles.
Estate provisions in nuptial agreements may also be useful in first marriages, or where one of the parties previously was married. Such agreements can require that insurance policies be purchased to insure an inheritance, or to exempt a cherished family collection from the spouse or to protect a trust fund that was set up for another family member. So long as the agreement is voluntary, it can be tailored to meet any special need.
Agreement must cover only the basics
Only in the past three decades have states upheld nuptial agreements as a basis for financial settlements in the event of divorce. Nuptials very romantic just after you have proposed, but they can be very helpful when one person has already endured a nasty and expensive divorce proceeding. It also can set the record straight on what the spouse receives vs. what members from the first family can expect.
It is not easy for a newly married couple to determine how the finances would be distributed in the event of divorce or separation. But the agreement does have to cover everything, just some of the basics. For example, if there is a major business or a particular trust fund or upcoming inheritance, the nuptial can address only those items.
Another possible clause is a waiver of support. Couples can agree to waive their rights to financial support. This means that both parties will have an incentive throughout the marriage to accumulate their own wealth and to pursue their own careers because if the marriage fails, they can only look to themselves for financial support. Such waivers must be fair when made, or they can be set aside. Neither party must be in danger of going on assistance and the rights of a child, born or unborn, cannot be waived.
Without such agreements, a community property state can grant the spouses one-half of the marital wealth. In other states, the assets are divided based on an equitable distribution. Community property states are Arizona, California, Louisiana, Wisconsin, Idaho, Nevada, New Mexico, Texas, Washington and the territory of Puerto Rico.
Again, nuptial agreements can be signed after the marriage ceremony.
For example, if a business is started during a marriage, the couple can sign a nuptial agreement about who gets what in case of a divorce. This holds true if financial circumstances change in any remarkable way. One very usual occurrence is the decision to put your spouse through college or professional school. This may mean going back to work, forgoing your own career or cashing in inherited family assets.
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