Prenuptial or post-maritial agreements for asset protection

Prenuptial or post-maritial agreement for asset protection

Do you conclude insurance policies? Of course.

It is like insurance. You pay your car and health insurance every year. Why should you not invest some money in counselling and in a marital agreement that could spare you a fortune if the relationship fails to work out?

Love and understanding are seldom found together
Congratulations on getting married! Marriage is about commitment. It comes with duties, responsibilities and specific expectations. Even if you are in love, be wise and plan ahead. In reality, many weddings wind up in divorce, leading to destructive conflict and costly litigation. To minimize dispute and to protect assets, negotiate a prenup or postnuptial agreement prior to or during your marriage.

Forewarned is forearmed
Address financial issues now as money is one of the most severe marital stressors. Discuss and set up guidelines on how to spend or save money. Identify the assets you bring into the marriage. Consider rules about the division of property, allocation of debts and dispute resolution provisions. Bring up other practical aspects, such as the religious upbringing of your future children, and in which language you will educate them. It can provide structure and clarity. Additionally, it helps you to avoid time, money and aggression in case of a divorce.

Contents and limits of a marriage contract

The spouses can choose, cancel or change the matrimonial property regime before or during the marriage in a publicly notarized marriage contract.

Often, as part of estate planning, a surviving spouse may be favored by prenuptial agreement. However, if divorce proceedings are pending, resulting in the loss of the surviving spouse’s right to a compulsory portion according to Art. 472 par. 1 CC, such agreements are only valid if expressly reserved.

The question arises as to whether the stipulation of spousal support, child support and custody arrangements in advance in a prenuptial agreement are enforceable in the event of a divorce at the time of separation.

Divorce settlement in advance

Recently, divorce conventions in advance or the anticipated agreement on post-marital alimony are binding. These are not subject to any particular form. One spouse can contractually agree to pay the other a certain amount of alimony in the event of a divorce (Federal Supreme Court ruling 5A_778/2018 of August 23, 2019 E. 5.5). Enforceable agreements are only valid after judicial approval. This occurs, among other things, if the content is not manifestly unreasonable. This is determined by the current income and asset situation at the time of the divorce.

Matters relating to children are not at the disposal of the parents. Agreements to this effect constitute a joint application to which the court is not bound.

Who should consider asset protection?

Marital Agreements are most attractive for:

  • People with widely differing financial circumstances before marriage.
  • People who are remarrying a second or third time.
  • People with offspring from previous marriages or relationships.
  • Business owners who intend to separate marriage and business financially. It may be that your business partners insist that you sign a prenup to ensure that a potential divorce would not break up the business.

Get informed, whether such an agreement is right for you. Take your time to negotiate. You may have received a marital agreement to review and would like to make an informed decision. Contact me now.