Sam A. Moak — The Legal Corner

The information in this column is not intended as legal advice but to provide a general understanding of the law. Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.

Not having a prenuptial agreement can be a costly mistake, not just for the famed actor Johnny Depp, but for you as well. 

Depp, 52, and his wife of just 15 months, Amber Heard, 30, are in the middle of a divorce. Heard filed a divorce petition earlier last month, citing irreconcilable differences, and requested spousal support. Depp's response, according to The Associated Press, asked the judge to deny Heard's support request — and asked that Heard pay her own attorney's fees. The couple reportedly did not have a prenuptial agreement, which could leave Captain Jack Sparrow's treasure rife for plundering.

In a divorce, breaking up finances is hard to do. Hollywood is ripe with stories of stars splitting and dividing estates. But Depp could be a poster boy for a prenuptial agreement. If you were checking off the boxes to determine who should consider one, he pretty much has them all. 

Generally speaking, prenuptial agreements are an important consideration for:

(1) older couples, those who come into the marriage with assets (as Depp did with a reported $400 million);

(2) people who have children from prior relationships (as Depp does);

(3) people who expect future celebrity and significant income (as Depp could, despite dismal reviews of "Alice Through the Looking Glass").

Without a prenuptial agreement, the process of getting unhitched can lead to protracted and expensive legal battles, or result in a less-than-fair division of assets.

A multimillion-dollar net worth isn't required to benefit. Hammering out a prenuptial agreement, or for unmarried couples, a cohabitation agreement, can make sense for many regular folks. But, it requires people to think ahead and, in our instant gratification society, that hardly happens.

Take the case of older couples and those who are remarrying. A prenuptial agreement can protect your assets not just in divorce, but in death. Many jurisdictions prevent spouses from being disinherited, so a court could easily void provisions in a will that leaves everything to your kids from a prior marriage. But a prenuptial agreement could be worded to require your new spouse to waive their right to dissent or take an elective share in your estate. 

Prenuptial agreements are not just for the 1 percent anymore. For young couples, a prenuptial agreement offers the chance to hash out divorce related issues like joint efforts to pay off one partner's student-loan debt, or how a partner might be compensated for leaving the workforce to care for their children. With a prenuptial agreement, the two people can write their own deal at the beginning of the relationship, at a time when they are in love and looking out for each other. 

But what if you couldn’t wait and are already married? Postnuptial agreements are generally harder to come by. Despite what advice some may receive, the law already favors postnuptial agreements, so you should seek the advice of an attorney. 

If you find yourself in a second marriage situation, with grown children or perhaps both of you have young children or significant separate assets or debts, then you should defiantly seek an attorney who is trained and familiar with estate planning and probate matters. But be aware. It is like negotiating a contract and both parties should have their own legal counsel.  

Attorneys are prohibited from giving legal advice to both sides of the agreement, be it prenuptial or postnuptial. While it may take some of the romance out of the union, the advice your attorney provides will assist you in making sure your plan meets your goals.

Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C. He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.

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