A prenup is a written contract between a soon-to-be married couple that allows parties to discuss their financial concerns and other potential areas of contention prior to their marriage. In general, a prenup enables you to control many of the legal rights and responsibilities you will acquire once you get married and dictate what will happen in the event of divorce or death. These contracts must be drafted and signed before the wedding.
The decision to enter a prenuptial agreement is entirely yours to make. Still, there are many things to consider before signing your prenup. Because our team has over 35 combined years of exclusive family law experience, O’Connor Family Law can help you determine whether a premarital contract is right for you and ensure your best interests are protected.
Benefits to Consider before Signing a Prenup
There are generally three significant reasons to have a prenup. First, it can decrease the potential for conflict between spouses because it addresses topics that are otherwise difficult to discuss in the event of divorce or death. For instance, if you plan in advance how to divide your money and property in the event of divorce, there will be less to argue about. Many people desire to divide their property differently in the event that it terminates with one spouse dying rather than going through a divorce. Given that emotions may sometimes take over the decision-making process within a situation that is already stressful, having this type of clarity and security can be a significant benefit.
Second, a prenup can ensure both you and your almost spouse are on the same page with how you plan to utilize your finances during the course of the marriage. This opens the door for a number of conversations many engaged couples might not otherwise have and allows you to come to agreements on how certain financial decisions will be made.
Lastly, many marriages are taking place when people are older now. This means that a number of people have worked hard to establish what they currently own, whether that be property or businesses. Many people have been divorced previously and have children from before their current relationship. A prenup helps protect everything you are bringing into the marriage so that you can easily ensure that your children are protected financially from having to lose part of what you want to be able to leave them in the future simply because of a divorce or your untimely death. If you’ve put the blood, sweat, and tears into building a business prior to getting married, then the last thing you likely want is a divorce or death causing you to lose half of it or not be able to leave it to your children. A prenup can help ensure that these circumstances are adequately addressed and that the end result is something you both consider fair.
Fairness and Full Disclosure in Prenups
Before signing a prenuptial agreement, you need to make sure you are meeting the requirements that will be examined if the validity of the prenup is challenged at a later date. One of these requirements is that there needs to be a full financial disclosure or, at least that there has been the opportunity for a full financial disclosure. This includes both assets and liabilities.
This means that both parties have disclosed all the assets and liabilities that they currently have, which is usually done by providing a written statement. Then, if either person has questions about anything, they can ask to see statements or other documentation. Ensuring the validity does not mean that you do not trust your to-be spouse. It means you are helping to ensure the agreement is valid. If you or your fiancé undervalue assets, misrepresent debts, or omit other relevant financial information, the agreement may not be legally enforceable for the person who has misrepresented what they have.
Additionally, if the validity is challenged, a Court will later have to determine whether the prenuptial agreement was fair and reasonable at the time it was entered and whether it is fair and reasonable at the time it is being sought to be enforceable. Fair and reasonable within the context of a prenup is slightly different than fair and reasonable in the context of a divorce. A person has a right to give up some of their legal rights, which is what prenups essentially do. Working with an experienced attorney who can ensure the prenup is written in a way that will protect you from someone later claiming it was not or is not fair or that they entered into it against their will is extremely important.
Consider Retaining Legal Counsel when Drafting a Prenup
While state law does not require spouses to have attorneys draft their prenup, it is strongly recommended. One of the factors a Judge will look at is whether or not both people understood what they were doing. Because of the nuances in the law, unless both people are represented by individual counsel, the Court will generally take the position that the person could not have been fully aware of the rights and responsibilities that they were gaining or losing within the agreement.
Terms to Consider before Signing
When drafting a premarital contract, there are certain provisions that could be beneficial to include in anticipation of divorce. Some topics that should be considered by a couple before signing a prenup include:
- Whether property that is brought into the marriage will remain with the person who brought it in no matter if marital funds are used to maintain it;
- Whether property that is acquired during the marriage will be considered joint property or individual property depending upon whose names are listed on the deed;
- Whether a property division will be dealt with differently if the marriage ends via death or divorce;
- Whether spousal support will be waived by one or both parties; or
- Whether there will be a requirement to retain life insurance policies during the marriage.
A prenuptial agreement becomes effective upon marriage. After the wedding, the agreement can only be amended or revoked by written agreement signed by both parties.
If you’ve already gotten married and wish you had entered a prenuptial agreement beforehand, you could potentially still enter into a postnuptial agreement. This is very similar to what a prenuptial agreement does although, if the validity of the agreement is questioned, there is a different burden that must be met to prove its enforceability. It does take both spouses being willing to enter into a postnuptial agreement. Unlike with a prenuptial agreement, if one of you does not like the terms being presented, there’s nothing you can do about it. With a prenuptial agreement, you have the ability to simply not get married if you cannot work out the terms in a way that is agreeable to both of you.
Call an Attorney about what to Consider before Signing a Prenuptial Agreement
A prenuptial agreement may be useful if you and your fiancé want to begin your marriage with a clear understanding of what will happen to your finances if the marriage ends in divorce. If you are entering a prenup, consult with an attorney who can explain what you should consider before signing. Our team can help you fully understand your legal rights and offer insight on the importance of this agreement in the event of a divorce.