Prenuptial Agreements Legal Advice from Melissa Nicholson and Nicholson Law By Virginia Olson
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hildren, separate property, inheritances, and business interests represent several significant considerations when entering into a new relationship. At times, protecting personal and financial considerations can compete with moving forward in a relationship. One frequent complaint I hear from clients in a marriage is that even though they kept everything separate between their spouse and them, they were not protected in a divorce. A prenuptial agreement and/or postnuptial agreement can remedy many of those issues. That being said, first and foremost, personal, as well as legal considerations should guide communication and decisions on how you conduct your relationship. Both deserve fair weight and consideration. Prenuptial agreements, postnuptial agreements, estate planning and seeking advice on how to generally manage your interests in a legally favorable manner are examples of effective tools to help ease competing interests. For example, separately owned property can be divided by the court in a divorce proceeding. SDCL 25-4-44 provides that “[w]hen a divorce is granted, the courts may make an equitable division of the property belonging to either or both, whether the title to such property is in the name of the husband or the wife.” Further, the
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South Dakota Supreme Court has stated that “South Dakota is an all property state: all property is subject to division regardless of its origins or title.” Kolbach v. Kolbach, 2016 SD 30, P 13 (citing SDCL 25-4-44; Muenster v. Muenster, 2009 SD 23, P 16). The only time property should be set aside as non-marital property is “in the case where one spouse has made no or de minimis contributions to the acquisition or maintenance of an item of property and has no need for support.” Id. (citing Muenster, 2009 SD at P 16). Whether getting a divorce or considering entering into a new relationship, handling your affairs with legal savvy may prove beneficial in the event a conflict ensues later. Also, South Dakota inheritance laws provide for an elective share so that the longer you are married, the more a spouse is entitled by law to inherit. For example, prenuptial agreements, aside from differentiating property interests, can also void and waive an elective share entitlement. Additionally, naming a guardian is one of the most common motivations for executing a Will, in addition to laying out financial affairs. Often learning how to manage an inheritance or property you brought into the marriage could alter or impact the way it’s ultimately divided in a divorce or upon death. Educating yourself gives you options to make proactive and thoughtful decisions to finesse sensitive issues. n
