Spring weddings are coming and likewise in the last two weeks I have received calls about drafting or reviewing prenuptial agreements. Sometimes they are never drafted, sometimes they are never signed and sometimes they are fully signed with lawyers for both sides.
Prenuptial Agreements (Prenups) are most often used by people with assets that are marrying for the first or second time. In addition, people marrying later in life may wish to limit their exposure to sharing any retirement benefits earned not only before the marriage but during the marriage and/or may wish to keep as separate property the appreciation on assets owned prior to the marriage including real estate and/or their business.
The hallmark of writing a valid prenup is to observe a few basic concepts:
1. It must be freely and voluntarily entered into. In other words coercion and duress such as would occur if you present the agreement for the first time a week before the wedding could invalidate the agreement.
2. Proper and complete financial disclosure by both sides is necessary. Attach a schedule of assets/debts that are being kept separate. Attach a copy of the most recent tax returns. Make a representation of typical annual income. The key is that the waivers are made knowingly.
3. It is preferable, although not a requirement, that each person have independent counsel review the agreement, explain it, and suggest revisions if necessary. This way there is no claim that one attorney represented both sides.
4. The agreement should be reasonable and fair when made and when enforced. You cannot provide for child support and custody in a prenup. You can provide for the waiver of maintenance, inheritance, and equitable distribution of assets deemed separate. However, if one person is left with very little and has given up very much for the marriage, watch out. An example could be a doctor who was asked to stop practicing medicine and become a stay at home parent. Another example would be a person moving here from another country leaving family, education, job and residence behind to start anew with a language barrier and then getting divorced shortly afterwards with no means of self-support.
Prenups should be carefully written and reviewed by experienced matrimonial attorneys. The more careful the agreement, the better the provisions, the more likely that the agreement will be upheld if ever needed.