PRENUP

The law considers marriage a contract between two people. The law in the state where the married couple resides will govern their property rights. A prenuptial agreement, also called a premarital agreement, allows a couple to set the terms of the property rights for their marriage, among other things. However, there are often a number of requirements that must be met for a prenuptial agreement to be binding.

Hiring a prenup lawyer can make all the difference in reaching an agreement, as will getting that agreement memorialized in a document that will stand up in court. A prenup lawyer will ensure that a prenuptial agreement fits everyone’s needs and stands up to legal challenges. Below you’ll find a helpful discussion on why you would want a prenuptial agreement and the role that a prenup lawyer can play in the process of forming one.

Reasons for Having a Prenup

Under state law, each spouse receives automatic property rights unless a legally enforceable agreement provides otherwise. For example, spouses share ownership of some property acquired during the marriage and both have the right to manage and control the property. If one spouse dies or the parties divorce, state law dictates the disposition of the property. If the parties wish to divide the property differently, it is necessary to create a prenup.

Here are some common reasons why you would want to make a prenup:

  • Keeping finances separate. Some kinds of property acquired during marriage automatically become part of the community or marital estate. A prenup can define whether an asset is the separate property of one spouse or whether the asset is part of the marital estate.
  • Providing for children from prior relationships. A prenup can ensure that the children from previous relationships inherit certain property from a deceased parent.
  • Establishing property rights in the event of a divorce. In divorce, state law will determine how to divide certain property acquired during marriage if a prenup does not exist.
  • Defining financial responsibilities during marriage. A couple can use a prenup to make financial decisions like whether to open joint accounts or whether an estate plan will include a surviving spouse as a beneficiary.

Why Should You Hire a Lawyer When Making a Prenup?

One of the best reasons to hire a prenup lawyer is to avoid a court declaring the prenup invalid. In general, each side should have their own attorney review a prenup before signing. While neither party is required to have legal representation, courts tend to be more cautious about enforcing a prenuptial agreement signed by a party that didn’t have independent legal representation.

In this situation, especially if the prenup seems unfair to the party without legal representation or if there are concerns about coercion or duress, a court may invalidate the prenup outright.

In addition, states typically have strict timelines for executing a prenup that must be followed. For example, you may be required to have it executed a certain number of days before the wedding or you may be required to provide a specific amount of time for all parties to review it before signing. Hiring a prenup lawyer makes this process easier for you since lawyers can ensure that all of the procedural requirements are met.

Drafting a Prenup

Before meeting with a prenup lawyer, couples should have a clear understanding of what to include in the agreement. Creating an outline of the terms is an effective way to create a fair agreement. Each party should also fully report their income and assets, which will satisfy the requirement that each party made full disclosure of their finances.

An experienced lawyer has knowledge of the type of terms prohibited from inclusion in a prenup. Although every state has different laws, a prenup typically cannot include:

  • Provisions that violate public policy: Courts will not enforce provisions that waive future child support, place limits on future custody or visitation rights, or use financial incentives to promote divorce.
  • Provisions that involve nonmonetary matters: A court will not enforce a nonmonetary condition and may even set aside the entire prenup if it includes conditions such as the division of chores or how many children to have.

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