Prenuptial Agreements Explained
A prenuptial agreement, or prenup, is a contract that two parties enter into before they marry. This contract can cover a wide range of topics about how you and your soon-to-be spouse will handle finances and assets during your marriage and beyond. An agreement like this becomes incredibly important if your marriage does not work out since your prenup will become a legally binding agreement in the eyes of the law. At this point, it will determine how you divide your assets and wealth, which can be devastating both financially and emotionally if not adequately covered.
The legal implications of a prenup are fairly simple: You and your partner have the right to dictate how your wealth is divided if you separate. This gives you both a clear path forward should your marriage not end well, so instead of dividing everything in a legal battle , you can simply refer to your existing agreement and move forward amicably.
Prenups are a vital consideration when planning your marriage. You want to go into this agreement with your partner understanding what signed means. When drafting your prenup, you and your spouse-to-be should sit down and discuss the topics you want to cover within the agreement then negotiate the language used to cover these points.
If neither spouse has any significant wealth, then a prenup may not be necessary. If one spouse has substantial wealth or financial interests, however, this agreement gives them peace of mind that a divorce will not affect their hard-earned income, while setting terms for how both partners will move forward.
A prenup is a good option if you and your spouse have children from a previous marriage. It shows the court that you want to address who will care for your children financially, particularly if something happens to you or your spouse.
Why You Should Hire a Local Prenuptial Agreement Attorney
When it comes to finding a prenuptial agreement attorney near you, there are many reasons to choose a local attorney. Chief among them is the attorney’s familiarity with state laws and local practices. State laws govern how prenuptial agreements are held enforceable. Some states have a statute of frauds, for example, which requires prenuptial agreements to be in writing and signed by both parties. Other states require prenups not only to be written and signed but also to be notarized. A local attorney will be well-versed in the requirements. The local attorney will also be familiar with the local judges and court rules. He or she can counsel and advise based on the particular judges in your area. Since judges have such individual styles, your prenuptial agreement may be enforced differently based upon the presiding judge. A local attorney can assist you to ensure that your prenuptial agreement is appropriately tailored in these respects. A local attorney can also help ensure that a prenuptial agreement is properly "executed" based on local practices. For example, some states require that each party independently consult with an attorney before signing a prenuptial agreement. Others have additional requirements. Again, it is important that a local attorney be familiar with the local practices to ensure that the prenuptial agreement is held valid and enforceable. Finally, the best and most cost-effective way to find a local prenuptial agreement attorney near you is to get a referral from a friend or use an online lawyer referral service.
How to Select a Prenuptial Agreement Attorney
Here are some characteristics to consider when choosing an attorney to assist you with your prenuptial agreement:
Experience: One of the most critical factors to consider is the attorney’s level of experience. A lawyer specializing in family law and with substantial experience should be your first choice.
Specialization: Look for an attorney who focuses solely on family law or at least has a substantial amount of their practice dedicated to this area of the law. An attorney with only limited experience in prenuptial agreements and family law generally will not be able to provide you the guidance and protection you need.
Client Testimonials: Reading reviews and testimonials from previous clients can provide invaluable insights into the attorney’s approach, expertise, and whether they’re a good fit for your needs.
A Good Listener: Select someone who listens to your needs and goals. Drafting a prenuptial agreement is a very personal matter that requires an understanding of your and your partner’s unique circumstances.
Knowledgeable and Up-to-date: All law is complicated and like all lawyers, you should choose a specialist who knows and understands the intricacies of the law, especially the statutory requirements related to prenuptial agreements and how to accomplish your goals.
Thorough and Accurate: Your attorney should prepare a comprehensive budget analysis setting forth the financial disclosure and discuss the ramifications of failing to complete and timely submit the waivers of disclosure and the other financial disclosures required by law. Drafting a prenuptial agreement without disclosing your complete financial picture can doom your agreement. And as importantly, it can potentially cost your attorney more money and you potentially spend more for the review of the financial disclosures that you and your partner and your attorneys agreed to omit or exclude.
A prenuptial agreement is complex and you should always retain an experienced attorney to draft the prenuptial agreement or any change thereto. While sometimes people make the mistake of thinking that a prenuptial agreement is just a form that can be downloaded from the Internet, it is not. It is a very important contract to protect yourself from yourself.
How Much Does a Prenuptial Agreement Cost?
Cost Considerations for Prenuptial Agreement Attorneys
After the purpose, structure, and types of coverage are established, it is important to consider the attorney costs involved in your invesigation. Are there flat fees for prenuptial agreement attorneys? Are there hourly fees for prenuptial agreement attorneys? Ultimately, a prenuptial agreement attorney will have to be engaged and paid, and these costs can be substantial . The fee structures might be different if the attorney is involved initially, when the agreement is being drafted, and later when it is being finalized.
Some representations might even require a retainer, essentially a pre-payment for services that might be rendered while negotiating an agreement. Ultimately, there are ways to reach an agreement without an attorney present, but it could cost you much more in the long run if you don’t at least have some legal representation or advice.
Prenuptial Agreement Questions You Should Ask
When you first meet with a prenuptial agreement attorney, you should come in with questions. Here are some questions to consider asking:
How long have they been a prenuptial agreement attorney?
How many prenuptial agreements have they drawn up for clients?
Are they familiar with any alternative dispute resolution options, such as prenuptial mediation?
Considering that prenuptial agreements can be modified under the right circumstances, how often do their prenuptial agreements wind up being challenged by the court and successfully enforced?
Will they provide the necessary legal guidance for in-state and out-of-state clients to draft an agreement that will hold up if either spouse moves out of state?
Specifically, what process will they employ to determine those assets included in the prenuptial agreement to determine what the equal division should be?
For California prenuptial agreements, what practices will they implement to ensure full and fair disclosures are made during the drafting process so there are no misunderstandings?
Common Myths and Misunderstandings About Prenuptial Agreements
One common misconception is that a prenuptial agreement will actually lead to divorce, almost as if the document has some magical power. In fact, most experienced attorneys can attest to having negotiated at least one settlement on property division or spousal support a few years after the signing of a prenuptial agreement. The owner of that "magic mirror" in Snow White had it all wrong; the real magic is in how both parties negotiate and write the terms. In fact , one thing the courts are going to look for with regard to the enforceability of your prenuptial agreement is whether you voluntarily signed it. And that leads to the next point:
Because a prenuptial agreement can be so hard to negotiate, it’s not uncommon for one party to want the agreement and the other party to simply not care or be ambivalent. However, if you were pressured to sign the agreement, or not allowed to have your own attorney, or coerced into the agreement somehow, it can make the agreement unenforceable.