With divorce rates at an all-time high, 5 to 10% of couples and 20% of remarried couples are entering into prenuptial agreements in order to protect themselves financially should the marriage not work out. A prenuptial agreement is a contract between both couples that clearly outlines and states how the finances will be distributed if they were to divorce and which financial responsibilities and obligations that each couple may have. A prenuptial agreement does not have to be permanent though if you add in a sunset clause, which basically puts an expiry date on the terms and conditions of the agreement.
The Two Different Types of Clauses
A sunset clause is designed to add an expiry date to the prenuptial agreement. In this way, couples are able to set a specific time for both parties to get their finances in order and settle old debts before they begin building new assets and a new life with one another. There are two different types of sunset clauses that can be incorporated into the prenuptial agreement. They include:
- A specific termination date. The sunset clause in this situation is simple. A specific date is set, and once the date has passed, the prenuptial agreement will lose all effects. Legal property returns to both parties as if the agreement never existed.
- A partially non-retroactive termination date. This sunset clause is relatively more difficult to hash out, and you will have to sit down with your spouse and by yourself to determine what type of assets are going to be excluded for certain periods of time. Under this type of sunset clause, the allowances and alimony will be divided up and released from the prenuptial agreement once the marriage has reached a certain milestone. For example, alimony payments may increase every 5 years.
Under the partially non-retroactive termination date, you are able to exclude and include varying types of assets and conditions based on what you and your spouse are comfortable with. In short, the prenuptial agreement does not necessarily have to include all of your assets, but rather just a portion of it.
Versatility of the Sunset Clause
The sunset clause is not as simple as it sounds, as it can be rather versatile to take into account varying terms and conditions that must be met as well. For example, the sunset clause may include financial protection for a child from a different marriage until the child has reached a certain age of maturity and can fully support himself or herself.
Divorce After Sunset Clause Has Taken Effect
Unfortunately, the terms and conditions of a prenuptial agreement will be considered completely void once the expiry time set by the sunset clause has passed. Those who divorce after this time will have to completely hash out the terms of the divorce again in court or with their family law attorneys just like with any divorce, and the terms and conditions of the prenuptial agreement will no longer be viable or taken into account.
It is important to speak with a family law attorney regarding your financial concerns when drafting the prenuptial agreement. For example, if you make significantly more income than your spouse, you may want to consider adding terms to alimony payments into the prenuptial agreement in order to protect your own finances. The sunset clause is designed for couples who have an initial fear that the marriage may not last long, and would like a prenuptial agreement in place to protect their finances until their marriage is stable and until both parties have had time to dealt with their finances before starting anew.