What is a Prenuptial Agreement and should I get one?

Most people enter into marriage with the intent of it being a lifelong commitment and never did they anticipate that one day, they could be facing down the dreaded “D” word…divorce. Some divorces are very amicable while others are long, drawn out and hard-fought legal battles. It is the latter that typically entices parties to at least consider entering into a Prenuptial Agreement.

The topic of Prenuptial Agreements can be polarizing. Some people are offended at the mere suggestion of a Prenuptial Agreement, while others think it is just good business. There is no right or wrong answer. Every person and every situation is different. But, if you are considering whether a Prenuptial Agreement is right for you, there are common, practical questions worth asking. What if you own a business and you want to ensure it is protected in the event of an unthinkable divorce? What if you are the beneficiary of a trust that you want to ensure it is kept separate? Are you concerned about a contentious divorce causing significant financial hardship to your family? Do you want to try and avoid potentially long and drawn-out litigation? These are the types of scenarios Prenuptial Agreements are intended to address.

A Prenuptial Agreement is a signed and notarized contract entered into between two people who intend to be married. The Prenuptial Agreement often spells out how parties’ assets and debts will be divided, as well as possible financial obligations from one spouse to the other for his/her support. While there are some limitations to a Prenuptial Agreement, Prenuptial Agreements can be very specific and tailored to each person’s need and circumstance. For this reason, Prenuptial Agreements often reduce conflict and cost when parties separate.

The Prenuptial Agreement should identify what property (assets and debts) will be classified as each person’s separate property and what property will be classified as marital property. The Prenuptial Agreement can also be specific about how each item of marital property is to be handled.

The Prenuptial Agreement can also address alimony or spousal support. Is there going to be a total waiver of alimony or will there be a designated sum paid for a period of time? Will there be conditions tied to the alimony obligation? These are all questions a knowledgeable attorney can talk through with you and explain the “pros” and “cons”.

Practical Tips:

DO have a complete disclosure of assets and debts. Trying to “hide the ball” is a bad idea for many reasons.

DO talk to your betrothed about what your goal for the Prenuptial Agreement is and see if you are both aligned.

DO provide your betrothed with a draft of the Prenuptial Agreement well in advance of the wedding date. Allow and encourage your betrothed to seek independent legal advice.

DO NOT spring the Prenuptial Agreement on your betrothed at the last minute before your wedding.

DO NOT try to hide the identity of your assets/debts or the value of those assets/debts.

DO NOT try to interfere with your betrothed seeking counsel to review your proposed Prenuptial Agreement.