What are Prenuptial Agreements?
Before jumping into the fetters of a prenuptial agreement, it is crucial to understand what one actually is, what purpose it serves and who might need one. A prenuptial agreement is simply a contract between you and your spouse-to-be that is entered into prior to the marriage. It is a way for you to establish your property rights before you get married. Also known as antenuptial agreements, premarital agreements or marriage contracts, these agreements typically designate how property and debts should be allocated should the marriage end in divorce or the death of a spouse. A prenuptial agreement may also cover issues such as spousal support or even pet custody, but other topics related to family law are typically not included due to unenforceability. That is because some subjects, such as child support or child custody , cannot legally be modified prior to marriage. You also cannot use a prenuptial agreement to establish any sort of agreements that violate public policy. Such agreements do not require a lawyer to draft, but they are highly advisable if you have significant assets or a complicated financial situation that you would like to have legally protected. For example, if you own a business that is your primary source of income, you may want to keep that business out of reach in terms of assets, as it could be vulnerable to dispute should you experience a successful lawsuit. In addition, if you have children from a previous relationship, you may want to protect your assets that will go to those children in the event of your death. It is also important to remember that you cannot legally waive alimony or child support obligations via a prenuptial agreement. This is because the courts must retain the ability to grant justice, especially in regards to protecting the best interests of children.
The Advantages of Hiring a Prenuptial Agreement Attorney
While some might be hesitant to hire a prenuptial agreement lawyer to handle the matter, there are many benefits to working with an experienced lawyer. If a couple decides to enter a prenuptial agreement, it should be written in a form that meets the requirements of Texas law and is enforceable. Even if a couple hires the same prenuptial agreement lawyer, an attorney will be careful to screen for improper or coercive circumstances that could make the agreement unenforceable.
Even more importantly, many couples have a lot of questions about how a prenuptial agreement will work, especially if they have children from prior relationships to consider. A lawyer can answer complex questions about community property versus separate property, division of property, enforcement of the agreement upon death or divorce, and various other complex concerns. Additionally, answers to questions can help clarify the overall process, terms, and conditions, which may ultimately help the couple avoid a contested divorce or fight over the prenup in court.
In circumstances where a prenuptial agreement is necessary because of a re-marriage or established business, a couple may have many complex concerns that are difficult for the parties to understand without legal experience. An experienced prenup lawyer can answer questions about protecting a portion of a future inheritance, how to divide complex investments, and more.
How to Select the Right Prenuptial Agreement Attorney
Getting the right prenup lawyer can be the most important decision you make about your prenup. Typically, a person who’s getting married for the first time and looking for a prenup should hire a prenup lawyer experienced in creating prenuptial agreements.
The most important thing is not where a lawyer went to law school or whether they are "chief" of anything, but how much experience do they have with prenups. I’m all for hiring lawyers with lots of experience, but only if the experience is relevant. Basically, you want a prenup lawyer whose primary focus is on the Area of law that you need help with.
To check out the attorney’s qualifications, visit their website and look for the "Our Team", "About Us" or "Experience" and "Qualifications" section, then look for information on prenuptial agreements.
Other ways to check out the lawyer include visiting their Linkedin page and looking them up on the websites of their State Bar Association and the State Supreme Court. These state run websites usually tell you where an attorney graduated from law school, when they started practicing law, where they practiced and a list of any bars associations they belong to and a list of any associations they don’t belong to, like the Family Law Section or the Elder Law Section. These last associations typically indicate areas that the lawyer does not practice. In some states, this information is embedded into the Attorney’s file, so you have to request it.
Once you’ve got some basic information about the attorney, you can do an internet search for reviews of the attorney that you are interested in.
You can also ask your accountant or other professional people you know for a recommendation. Attorneys typically refer clients to other attorneys that they trust and respect.
Yes, you can always check ratings sites such as Super Lawyers or AVVO, which track different attorneys and their ratings by other attorneys and judges. Often times the reviews on these sites will have detailed information about the legal skills of the attorney you are checking out.
You even have the capability for anonymous chats on these sites, which can allow you to ask an attorney a question.
Of course, the price of the attorney is certainly a factor. How much is this going to cost you, and how will you know that the attorney has billed you for his/her work accurately?
Some law firms bill in 1/10th of an hour, or 6 minute increments. So if you email your prenup lawyer a question, that could cost you an entire hour of fees if you call them on the phone to ask a question, which could be billed at $300.00 an hour, that’s $50.00. If the partner calls the associate that does the work to have the associate draft an Answer to the prenup, that’s more fees.
In my office, we don’t charge for any emails or phone calls to review your case, the division of assets and for general questions about child custody, support and visitation. We only charge for drafting (about $150.) and charging conferences or mediation sessions.
Of course, each person makes their own decision about their money and their budget. That’s right – it’s your money, your budget. Be a careful consumer, use the right lawyer, and you’ll have a prenup that you can live with and have a solid future with your new spouse.
Plan Your Strategy by Asking These Questions of a Prenup Lawyer
Your prenuptial agreement lawyer (sometimes called a "prenup" lawyer) is someone who can help you negotiate all sorts of beneficial terms into your prenuptial agreement, even if it isn’t always obvious that those may exist. This may result in contractual terms that don’t by themselves appear to have any value or special meaning. One way to choose the best prenup lawyer for you is by asking questions, and below are some questions you should consider asking.
- My spouse-to-be comes from a wealthy family. How could I benefit from this prenup?
- What are the benefits of including two (2) months of spousal support in the prenup as opposed to saying there would be no spousal support at all?
- If a business is included in my assets, how will its valuation be determined, and how can I trust the valuation procedure that will be used?
- Since I am a laborer, I am not making much money, and it would be very difficult for me financially to put away assets for my future . Is there any way to include additional costs and/or monthly support in the prenup so that if it were to be breached I will be compensated for my assets?
- What is the likelihood that a court of law might set aside the terms of this prenup even if we both agree?
- Would you recommend that I obtain an independent prenuptial agreement lawyer for my spouse-to-be?
- If the financial documents you prepared for my spouse-to-be reflect certain debt, how can I defer the payment of this debt and avoid having two separate creditors suing me for the same debt?
- Are there additional things that you think should be included in the prenuptial agreement besides what has already been discussed?
- Would you agree to continue working with my spouse’s independent attorney to work toward reaching an agreement instead of expecting the parties to work everything out between themselves?
The answers to these questions should assist you in determining whether or not to move forward with this lawyer and the negotiation process and will also serve as a basis from which proposals and counter-proposals may be made.
Common Prenuptial Agreement Myths
"When you shake hands with a lawyer, watch your wallet with the other hand." Here are some common myths about prenups that people have and the truth behind those myths:
Myth: Prenups are only for people who are wealthy.
Truth: While it’s true that a prenup can be especially comforting for individuals who have an unusual amount of wealth, like a successful entrepreneur or inventor, a prenup can also be beneficial for less affluent people. Unequal incomes, for example, can create an unfairness in divorce settlements.
Myth: Prenups don’t legally protect premarital assets.
Truth: When drawn up properly, a prenup can help keep individuals’ premarital assets separate and create an unequal division of property in case of a divorce. This is particularly important for people who were previously married and are entering into a second or third marriage.
Myth: Prenups are always unfairly one-sided.
Truth: A well-written prenuptial agreement should contain well-established terms that benefit each person. Lawyers can help to ensure that prenups benefit both people, and courts will not enforce strict or unfair provisions.
Myth: Prenups are permanent and can never be changed.
Truth: People can change or revoke prenups at any time as long as both people agree and sign documents to do so. Although prenups are good to have early in a marriage, they can easily be altered once the marriage is off to a good start.
State Law and Legal Basics
Prenuptial agreements are governed by both contract law and family law. It is essential that the agreement complies with the laws of the jurisdiction where the document is signed. In determining whether a prenuptial agreement is enforceable, a Family Court will apply the contract law of the state which governs the contract. This can result in unnecessary challenges to the agreement which the parties intended to be simple and straightforward, and which would not otherwise have been challenged if the appropriate law had been applied to its formation.
Some states follow the Uniform Premarital Agreement Act ("UPAA"), which provides general guidance as to what should be included to ensure the enforceability of a prenuptial agreement. UPAA does not specifically require either party to obtain separate counsel or to voluntarily disclose financial assets. Rather, the statute advises that each party be represented by independent counsel and be fully aware of the other’s assets , obligations and income, and that both parties execute the agreement voluntarily.
Parties should be aware that if a court should decide not to apply UPAA to a particular prenup dispute, the latter could be unenforceable – or the parties may end up having a battle over whether the prenup should be enforced under UPAA or under general agreement rules.
Some states require that the agreement be filed before the wedding while other jurisdictions require that the agreement be executed within a certain specified period before the marriage, which can be several years. Most states recognize that a prenuptial agreement executed during engagement is valid as a general contracts law principle, but courts will reject the agreement as violative of public policy if it is executed at the time of the marriage or shortly before it.
Moreover, some jurisdictions require a notary or witnesses be present when the parties sign the agreement.