24
Jan

Many people have heard about the prenuptial property separation agreement, so in this article, we will try to briefly explain how these agreements work in this country, as well as the associated advantages and risks.

A prenuptial agreement (prenup for short) is a contract between two individuals who intend to marry each other. Prior to the marriage, this agreement is done with the purpose of listing the assets that each of the contracting parties possesses and how these assets would be divided in the event the marriage ends.

Premarital agreements are a smart way to plan for the protection of one’s own assets and to be as transparent as possible before marriage. 

However, it is common that when one of the parties says: “We should sign a prenup”, the other spouse and their relatives often see that negatively. Regardless, it is important to recognize the importance of signing these types of contracts.

Many people believe that prenuptial agreements are intended for the rich and famous, but in reality, individuals from all social classes enter into prenuptial agreements. One of the main reasons is that this kind of agreement helps avoid confrontations in case of a divorce and it also protects assets owned prior to the marriage for each spouse.

What can I include in a prenuptial agreement?

In a prenuptial agreement, there are financial aspects you can include, some examples are:

• Credit
• Personal debts
• Special capitulations
• Additionally, the separation agreement can define the assets that will not be part of the separation and will be shared between the spouses, since it does not necessarily have to be a total and absolute separation of every single asset.
• It may include allocations of particular properties to a spouse in a long-lasting marriage, additionally, the spouses may establish a separation of property agreement for the marriage and include a clause specifying that in case of a divorce, the spouse who has the better financial situation could make alimony payments to the other for a specific amount of time.
• Another common example is when the spouses establish a separation of property regime for their marriage but include a clause specifying that in case of divorce, the spouse with the more precarious financial situation will keep the family home.

As you can see, it is possible to enter several different types of arrangements, given that the agreement would not present constraints.

Note: This only applies if the agreements don’t infringe on family public safety and inheritance matters.

What should not be included in a prenuptial agreement?

There are sensitive matters that should not be included in a prenuptial agreement. Some examples are:

• Sentimental matters
• Social matters
• Political matters
• Religious Beliefs to instill in children.
• Relationships with relatives or siblings
• Among other potentially sensitive aspects

What Are the Benefits of signing a Prenuptial Agreement? 

The purpose of a prenuptial agreement is to establish clauses that would resolve issues (mostly financial) and avoid future conflicts in the event of a separation or divorce.

• Before and during the marriage, the spouses may accrue debts not necessarily created by or for the marriage. A prenuptial agreement can be signed as protection from the mismanagement of the other spouse, given that after signing this agreement each party is responsible for their debts as well as the management of their assets.
• Additionally, in the event that the marriage is dissolved by death or divorce, a prenuptial property separation agreement prevent the spouses from having to divide their assets since their marriage was not based on a Community of Property system.
• The division of assets after the dissolution of a marriage (by divorce or death), is another important part of a prenuptial agreement. If there is no premarital agreement, the law in the Dominican Republic defines how assets would be divided after a divorce, but with this type of agreement, the spouses get to decide.

• Additionally, the separation of property regime is a practical one, since each of the spouses can purchase, sell, or acquire any type of debt, without the need to have the consent of their spouse.

What are the risks of a prenuptial agreement?

In general, conversations about prenuptial agreements are usually quite unpleasant for couples and their families, when one of the spouses proposes this type of agreement on their own. However, agreements of this nature are quite convenient and help maintain family assets, while having very few to no risks.

Something important to keep in mind is that, although assets are kept separate, the spouses still need to contribute with marriage expenses, and if debts are generated as a result of daily life, both spouses are jointly and severally responsible.

On the other hand, Prenuptial Property separation Agreement is usually the most common type of agreement of this nature and is also the one that many of the spouses react negatively to when proposed by the other spouse. In any case, even in this type of agreement, if one of the spouses decides to give any property to the other spouse, this property will not be subject to partition in case of death or divorce. Additionally, in the event the spouses decide to jointly purchase movable or immovable property, they will be able to keep it and own it together, and if the marriage ended for any reason, they would only need to liquidate these common goods.

As you can see, broadly speaking there are no risks associated with this type of agreement because spouses are still able to share property, marriage expenses are shared and any gifts received by a spouse will continue to belong to that spouse, in case of separation or death.

Morillo Suriel, is a law firm in Santo Domingo, Dominican Republic, specialized in prenuptial agreements. We are at your disposal to review your specific case through a consultation, and guide you throughout the process of drafting an agreement that fits your needs.