Marriage contract – how to avoid being left with nothing?
Today, entering into a prenuptial agreement has become commonplace and normal for spouses who have separate property when they marry. Many entrepreneurs and high-income employees also seek prenuptial agreements, especially if their spouses lack their own property and comparable income. Children of wealthy parents on both sides also tend to enter into prenuptial agreements when the assets of wealthy families are combined.
A prenuptial agreement is intended to regulate the property relations of spouses and eliminate disputes and misunderstandings related to this matter.
However, as my legal practice, based on numerous family disputes I have been involved in, shows, prenuptial agreements generate numerous disputes between spouses, especially when one spouse is left with literally nothing in a divorce.
The most common formula for prenuptial agreements remains the following: "All property acquired both during and before the marriage is the property of the spouse in whose name it is registered."
This would seem to be a perfectly understandable and fairly transparent legal construct that does not infringe on the rights of either spouse, but it's not quite that straightforward.
Indeed, a prenuptial agreement based on this formula is not encumbering; the spouses only have to ensure that, when acquiring new property or disposing of old property, the property is distributed fairly between them, without infringing on the rights of either.
But, immersed in family concerns, one spouse, typically trusting their other half, completely forgets about property matters.
As a result, at the time of divorce, one spouse realizes they have been completely deprived of all property acquired during the marriage. It often happens that the spouse does not even have a place to live, and after the divorce, they are literally forced to "go homeless." Considering that a divorcing couple is usually already in an insoluble conflict, appeals to conscience and requests to hand over at least a smaller portion of the jointly acquired property do not produce the desired result, and the time has come to seek the help of a family lawyer and prepare for a court challenge to the prenuptial agreement.
But the question arises: "How can a prenuptial agreement be challenged if it is not inherently onerous and its terms are standard and quite acceptable?"
Finding themselves in such a seemingly dead-end situation, individuals approach lawyers with this problem, hoping to find a solution, which indeed exists.
I will give a couple of examples from my legal practice in family disputes, which I have been involved in resolving this year.
First example:
The couple had been together for almost 20 years, with one three-year break for divorce, after which they remarried. They have no children. Both spouses worked as insurance agents with approximately equal incomes. All the money they earned was invested in purchasing residential real estate and finishing it. During their marriage, they purchased two apartments in Moscow, three apartments in Turkey, a dacha in the Moscow region, an inexpensive car, and two rights to claim the transfer of studio apartments under shared construction agreements (Federal Law 214-FZ). Shortly before the divorce, his wife insisted on a prenuptial agreement. Since he had no intention of divorce, he readily agreed. However, his wife soon filed for divorce and began evicting him from the apartment. It turned out that all the real estate was registered in her name, while her husband remained the owner of a Lada 21214 worth 20,000 rubles and a right to claim under the shared construction agreement for an apartment in a building deemed illegal and subject to demolition. This right of claim, of course, is worthless. The husband decided to challenge the prenuptial agreement as unconscionable in the Tushinsky District Court of Moscow. The district court found the contract unconscionable, arguing that the husband had not been deprived of all his property. In desperation, the husband decided not to appeal the court's decision, despite the fact that it was necessary in this case.
Second example.
A couple had been married for approximately 10 years. They had two minor children. The husband was an entrepreneur, the wife a homemaker. During the marriage, they acquired a four-room apartment in the near Moscow region, two cars, shares in the authorized capital of an existing commercial organization, and two valuable plots of land on a river bank in the Moscow region. The husband had purchased a one-room apartment before the marriage.
The family life did not work out. The husband gifted the apartment, purchased before the marriage, to the children in equal shares. In response, the wife entered into a prenuptial agreement, according to which all property belonged to the spouse in whose name it was registered.
After the divorce, the wife was left with only one car. After some thought, she contacted a lawyer to have the prenuptial agreement...