Marital agreements: the key to happiness

Family problems in general, and marital breakdowns in particular, lead couples and the professionals who advise them to seek paths to resolution in very complicated situations. If the couple has also accumulated significant wealth, at the time of separation there will be the additional problem of determining the distribution of wealth and possible alimony for the spouse who is financially disadvantaged following the divorce.

However, it is not necessary to move in the upper echelons of society to hear news of very expensive breakups, the famous million-dollar divorces, since the distribution of wealth also takes on importance in the middle class.

During a breakup, one of the most controversial issues is the distribution of wealth generated during the marital union. It seems necessary to clarify that the amount a spouse may have to pay the other is decided on a case-by-case basis, without a categorical response regulated by the law. Any payment that is determined will be established at the discretion of the judge, who will, of course, make a decision based on applicable regulations with broad leeway for interpretation, as long as the parties haven’t reached an agreement through a settlement. Whether by mutual agreement or contested, the truth is that the future wealth of both spouses is at stake in a separation or divorce, which includes alimony. We must not forget that the right to alimony comes from the wealth imbalance that one of the spouses will have to face following the separation. If certain financially quantifiable comforts were enjoyed during the marriage, the spouse who generated that wealth must compensate the other for a certain period of time.

It should be noted that the Civil Code establishes a general framework which governs the financial effects of marriage: some rules are mandatory (non-modifiable), and others are supplementary, which can be modified by the spouses on a voluntary basis through marital agreements.

It was already common for couples who had amassed great wealth during their single life to sign prenuptial agreements, but now it is becoming increasingly common among people who are not millionaires. Such documents tend to include agreements on everything down to the very last financial detail in the event of a marital breakdown.

Marital agreements are contracts that can be signed at any time (even after the marriage has been celebrated) which establish the rules governing the financial aspects of the union. They are formalized in a public deed and registered in the civil registry, along with the marriage registration.

Considering all the above, the lawyer must know the extent of the wealth to be considered when the petition for separation or divorce is filed. Next, while in constant contact with their client, and with the collaboration of the other spouse in the best-case scenario, the lawyer tries to determine what needs must be covered for each spouse, especially in terms of their permanent residence and children. It is also necessary to assess their purchasing power before and after the marriage.

These are technical matters which there is usually a multitude of evidence for (private detective reports, checking account transactions, financial product contracts, bills).

In conclusion, in divorce proceedings it is always advisable for information to flow and to pursue a good outcome for both parties. Collaboration between lawyers and the presence of mediators who are accustomed to working with large estates generally facilitate reaching a solution that is satisfactory for all.

Celsa Núñez, Managing Partner at ICN LEGAL

931 060 620