When is a prenuptial agreement necessary?
It’s not necessary uniformly, but if this is a second marriage and one of you has children, or in any case where a business is owned, I would suggest that the business owner, at least, consult with an attorney. In Maine our laws basically indicate that if there’s growth in a business, even if you had it prior to the marriage and even if you had it in the family for decades before the marriage, if the value of that business increases during the marriage and you played a substantial, active role in the management or operation of that business, the increase is marital. Even though your spouse may not own any stock in it or even though your spouse has only been your spouse for two years, if you’ve had exponential growth in those two years and you haven’t protected it by a prenup and you have a substantial active role in that business, your spouse may have a claim to that growth.
In terms of having a second marriage with children, obviously you want to provide for your children from your prior relationship. There are laws that make your spouse the next in line — not your children, your new spouse — in terms of estate planning. Also, in terms of divorce and the property that you acquire, it’s very important that if you’ve come into the marriage with anything, you see an attorney and find out how you can protect those things that you’ve built. The sad thing is that 50% of first marriages don’t work out and about 70% of second marriages don’t. While hope springs eternal, I think it’s always good to look past the stars. Look at reality and at least know what you’re walking into and do it with your eyes wide open.
