Prenuptial Agreements Explained
A prenuptial agreement (also commonly known as a premarital or antenuptial agreement) is a contract or agreement that a couple can enter into before the get married or enter into a civil partnership. It is a very common practice in some cultures to plan for the financial aspects of a marriage before the marriage occurs, including addressing the financial consequences and settlement of any future divorce or separation. Though this concept may seem odd in other cultures, prenups are becoming more and more mainstream.
In the past, prenups carried a bad reputation, often being thought of as simply a "get out of jail free card" for husbands to protect themselves from future wives suddenly becoming gold diggers. However, when drafted properly, they can also be used to benefit both spouses. A good prenuptial agreement can be taken as proof of planning that makes clear the parties’ intentions to act like rational adults and think out how they will divide their assets if their relationship fails. This also stands as an example to judges during divorce proceedings.
The best way we can describe a prenuptial agreement is by using the Internet, specifically, Pinterest. So much of what makes Pinterest such a great social media site is the fact that you can "pin" links to photos to your "board" and organize them neatly. Now, think about the fact that your board is your life. It contains all of the "pins" that you find that are ultra-important to your identity . It includes all of the photos of that new recipe for vegan lasagna you want to try, canyoneering in Utah, and those shoes that you’ve got your eye on.
Now imagine that was a prenup. The "pins" are the assets you had before your relationship, the ones that you own exclusively or entirely by yourself. Some people like to get technical, categorizing the "pins" as "community property" or "separate property". Community property goes to the community (the couple), while separate property goes with the person who had it before they got married. This is important for those with a LOT of money, but for most people, simply dividing the assets evenly by a set "pin" is enough – especially when you consider what goes into determining whose "pin" goes where. It can get complicated.
Since a prenuptial agreement can take so many forms, and covers so many aspects of a relationship, it’s important that you speak with a lawyer about putting one together. With a good agreement, you can protect your assets and interests in case your marriage ever does go bad. (As in, if your spouse cheats on you, at least you know where your money is going.) An agreement can also help create a road map for what would happen during a divorce or separation. If kids are involved, it can include information about joint custody, sole custody, child support, child visitation, and more. It really can help the two of you plan for almost anything!
Advantages of Hiring a Lawyer
Although it’s not required that parties contract with a lawyer before entering into a prenuptial agreement, there are benefits to doing so. The drafting and execution of the prenup itself can be heavily contested later on. For example, if the agreement is not properly executed, either because of the wrong format or because the agreement was fraudulently signed by one of the parties, it will be extremely difficult to later enforce. In addition, it is to be expected that a spouse will challenge the prenup if there’s ever a divorce and he or she has a strong incentive to do so. Therefore, it is wise to have an attorney skilled in this area to negotiate and draft the agreement to reduce the likelihood of future arguments. Moreover, a divorce court may determine that the terms of the prenup can be unreasonable and against public policy despite the parties’ negotiations. Going through a lawyer who is experienced on the matter may help spot inappropriate terms and remove them before they can become a factor in the future. Even if you get the prenup you want at the time, you’ll want the assurance that it can stand the test of time. A prenuptial agreement is a long-term contract between the parties that can and should be revisited periodically, especially if there’s been a change in circumstances or the law. An attorney will help your prenuptial withstand the tests of time and the court.
Prenup Risks When You Don’t Hire a Lawyer
The allure of saving a bit of money by using a standard template or form for a prenuptial agreement is certainly tempting. In fact, it is all too easy to do this in today’s legal market. There are a plethora of free sites claiming that they provide exactly what you need, and we get circuit court orders every week that are drafts from these sorts of sites. The problem, however, is that these templates nearly always miss the mark.
The most obvious problem with a template is that prenups that do not meet the requirements of the law, i.e., the law of the state where they are sought to be used to be enforced by a court, are unenforceable. Templates do not address the statute of frauds issue, the proper choice of law provisions, and no template can address the specific requirements and facts of your situation. Courts that have heard claims for enforcement of templates have invariably denied the petitions. So, not only do you get a form that would be difficult to enforce at all, you also do not get a document that is custom-tailored to work properly because you are just getting boilerplate language and not specific language that covers your needs.
Moreover, while many templates make the claim that a prenuptial agreement is merely a contract, the fact is that prenups (just like postnups) are a specific type of contract. They require a greater level of detail and specificity than just merely a run of the mill contract. The drafting of a prenup also requires the attorney to obtain certain information – financial and otherwise – and address that information in the document. You cannot hope to get a contract template to do this.
Finally, most templates also provide boilerplate waivers of counsel. This provision makes having a lawyer even more important. As it turns out, the law does not favor a party waiving representation. Courts will generally "look through" a settlement agreement that was signed containing a clause in which the parties waived the right to be represented and will analyze the terms of the agreement to determine whether it would pass scrutiny under the law. In simpler terms, while you might be able to hold all of your worldly goods, you have to give up other things that could be considered marital property. This is not the case if you are waiving the marital property laws. Unless you really know what you are doing, you could get yourself into a serious jam. A lawyer can let you know whether any waiver is appropriate, and would also help you get the best possible deal with the least amount of risk.
At the end of the day, prenuptial agreements are a good idea. They might be mandatory or required of you on one side or the other. But the templates are often attractive but dangerous. Even the seemingly simple forms can cause big headaches.
What Makes a Prenup Legal?
To be enforceable, a prenuptial agreement must meet certain legal requirements. While specific provisions have been found to be enforceable by the courts, the following elements remain necessary for an enforceable agreement under the laws of nearly every state. The agreement must be in writing; The agreement must be signed by both parties; At the time the agreement was signed, both parties disclosed their current income and financial worth; The agreement must not have been made under fraud, undue influence , or coercion; Both parties entered into the agreement voluntarily; and Each party had the benefit of independent legal advice. As I address the issue of divorce in my practice, I have noted instances where one person believes their prenuptial agreement is valid but it is not. This leads to unnecessary expenses in proving the agreement is not valid so the court can set it aside. Additionally, if you are in doubt as to the enforceability of your prenuptial agreement, I recommend that you obtain an independent legal review of the document. These costs will be well worth the money spent if it saves you the time and money it will take to set aside an unenforceable agreement.
How Much Does It Cost to Hire a Lawyer vs Do It Yourself?
Do You Need a Lawyer for a Prenuptial Agreement?
The cost of a prenuptial agreement can vary widely, from a few hundred dollars if you write it yourself, to tens of thousands of dollars if you hire a big-time law firm. But it’s certainly not as simple as saying that this is exactly what it’s going to cost you. You don’t know what’s going to happen in the future, and whether you will have to spend money on divorce proceedings if your spouse challenges the agreement you wrote yourself. And of course there are no guarantees when you pay for a lawyer to handle your prenup. That said, a reasonable rule of thumb is that you don’t want to end up paying the same amount for the prenup later on that you would have paid originally just to get it done right the first time. In the case of a prenup that you write yourself, you run the risk that you will overlook some important step or issue, which makes the entire document vulnerable to being overturned later on by a judge. You may end up hiring attorneys and spending thousands of dollars to resolve contested issues in divorce court that a properly-written prenup could have resolved. Even if your DIY attempt at a prenup is valid, you’ll have to file it in court someday, when divorce proceedings force the issue. Such proceedings can be time-consuming, stressful, and expensive. Lawyers charge flat hourly rates for such services. Your DIY prenup will have effectively cost you as much as a prenuptial agreement with legal counsel and challenged prenup both. The difference is that you didn’t get the protections of professionally-drafted legal language and representation. Sometimes, it’s worth hiring a prenup attorney just to have that level of protection and to avoid future litigation over the issues covered by the agreement. Is having the prenup prepared by a lawyer for each spouse essential? Absolutely not. But oftentimes it is the wise choice unless you’re trying to save money while getting married without a care in the world.
How to Choose a Lawyer for Prenup
You want to find a lawyer that has experience in Family Law, this includes everything from prenups to separation agreements to divorce issues. Lawyers practice in a variety of areas, if a lawyer is practicing criminal law and never does family law , they may not the best choice for your prenuptial agreement. Lawyers working for family law firms have experience in helping couples set up prenuptial agreements. Word of mouth is always the best way to find a family law lawyer, look for testimonials and reviews from former clients. If you’re friends with someone that has used the law firm in the past, you should ask them what their experience was and if they were happy.
