Question: My second husband and I were married eight years ago. We bought a home shortly after we were married. Because he did not have the cash, I made a $50,000 downpayment, and the lawyer who closed the deal put the house in both of our names in a tenancy by the entirety, whatever that is. I also filed joint income tax returns with him. I didn’t know it at the time, but my husband owed the Internal Revenue Service more than $60,000, and there were tax liens against him – now against the house.

We are now separated and beginning our divorce because he was not truthful to me. My divorce lawyer tells me that I was lucky the house was titled by the entirety because the tax people can’t take the house. I am skeptical because the IRS is still writing to us. Am I unlucky in both marriage and money again?

Answer: Yes. Tenancy by the entirety is based on the theory that since husbands and wives are considered to be one person, property held by both can’t be divided into parts and therefore can’t be sold or encumbered by one without the agreement of the other. This means that under state law, the surviving spouse receives the total property without claim by any heir or creditor of the first to die. At least, that was the theory before a recent decision by the United States Supreme Court, which ruled that since each spouse has “individual rights” in property titled in this fashion, liens can attach as a matter of federal law.

You didn’t tell us where you live, but since only 13 states (Delaware, Florida, Hawaii, Illinois, Indiana, Maryland, Michigan, Missouri, North Carolina, Pennsylvania, Vermont, Virginia, and Wyoming) still allow tenancy by the entirety, we would bet that you live in one of them.

Here, it’s not just unlucky “13”. It’s the need to know whom you are marrying. If you can’t get answers before the fact, you sure won’t get them later.

Question: My wife, a nurse anesthetist, and I, a doctor, were married ten years ago. Because of our ages and bad prior marriages, we signed a premarital agreement. We each had lawyers and all of that. She stopped working full-time to have our two children, and then came back to work in my office without pay for the past two years. Things got bad, and she told me that she is getting a lawyer to contest the agreement. She wants support for herself and the kids, property division, and medical insurance coverage because she has lost her license due to inactivity, plus she has some health issues that began after our marriage. I was shocked at this because my lawyer told me that the agreement my wife and I signed was etched in stone. I figured that I would have to pay child support, but what about the rest of it? Can the premarital agreement that we signed be contested in the courts?

Answer: Any agreement can be contested. Contests generally deal with three basic areas: (1) procedural fairness – that is, whether the parties signed the agreement freely, voluntarily, and without duress; (2) substantive fairness – that is, whether the terms are fair or unconscionable; and (3) breach or waiver of the agreement by acts of the parties during the marriage.

The law of the state where you live or where you seek to enforce the agreement may vary. Although an unequal division of property or waiver of alimony alone will not make a premarital agreement unfair and inequitable, there is certainly a public policy interest in not having one spouse left destitute or dependent on the welfare of the state following divorce from a wealthier spouse by reason of an unfair agreement. Child support established by a premarital agreement is not binding on the Court.