How to Draft a Prenup You Never Plan to Use
You’re engaged, planning your wedding, and ready to start your future together. However, there is one important piece of business that you should address before celebrating and planning your future.
A prenuptial agreement can help you and your soon-to-be-spouse establish the kind of honesty and long range planning that will make the financial side of your marriage successful.
Before you enter the contract of marriage, you should have a plan about what to do if you decide to divorce. Of course, nobody goes into a marriage by planning for divorce. and our hope is that it is something that you never have to experience.
However, a prenuptial agreement is like an insurance policy. You should have a prenup in case of divorce, just as you have property insurance just in case of fire and life insurance just in case of premature death.
Drafting a Prenup
The prenuptial agreement lawyers of Petrelli Previtera believe that it is important to negotiate and execute a fair and legally binding prenuptial agreement with the person you love before other things get in the way. In order to do so, it is important that:
1. The document is equitable.
A court is unlikely to uphold a prenup that is blatantly one-sided and that does not account for the interests of both parties. In other words, the agreement is less likely to be challenged in the first place if it is fair. A publication in the New York Law Journal discussed this requirement, noting that many statutes require the prenuptial agreement be “fair and reasonable at the time of the making of the agreement and … not unconscionable at the time of entry of final judgment.”
2. Both soon-to-be spouses have legal representation.
The court will presume that both parties understand the terms of the agreement before signing it. So, each party should have independent legal counsel review the proposal. If both partners are represented by lawyers, then both of their interests will be protected. It is often acceptable for one spouse to pay for the other’s legal representation. If this is the case, it may be wise to include some language within the document stating that the recipient chose his or her counsel and was satisfied with the provided representation.
3. All the details that are important to you are included in the agreement.
While things like child custody cannot be included in a prenup, other important things can. The most common details are those that relate to property, money, inheritance and other assets. However, other things such as who gets to keep the family pet can also be included and upheld.
It cannot be stressed enough: do not attempt to hide assets when putting together a prenuptial agreement. Although complete disclosure of every single asset is generally not necessary, both parties should be provided with enough information to have an understanding of the impact of the agreement.
Frequently Asked Questions
Below are answers to questions clients commonly ask us about prenuptial agreements.
Why do I need a prenuptial agreement?
A prenuptial agreement offers each spouse certain protections in case they divorce in the future. This legally-binding document can do the following:
- Determine which property (such as homes, cars, and jewelry) would be marital assets and which would be separate
- Limit each spouse’s debt liability
- Protect the entitlement of children from a previous marriage to money and property
- Protect heirlooms, inheritances, business, and other family property
Couples have many options when creating their prenuptial agreement, but there are a few things the document cannot legally do. For example, it can’t defy criminal law or public policy. A prenup also cannot outline personal obligations, determine child support, custody, and in most cases, alimony.
How can my future spouse and I prepare for our meeting about drafting a prenuptial agreement?
Before meeting with one of our attorneys, you can list the following:
- Property and assets you own separately
- Property and assets you purchased together
- Debts and other liabilities you are separately responsible for
- Inheritances you will each receive
- Your future financial goals as individuals and as a couple
- Any financial-related issues that might be important to discuss while establishing the agreement
Taking a moment ahead of time to list these details is a great way to start the discussion and prepare to draft the document.
What should we focus on when drafting a prenup with our attorneys?
You have already decided to take the first step toward smart financial planning as a married couple. When drafting your prenuptial agreement, keep these qualities in mind:
Time and preparation: Give yourselves ample time before the wedding to complete the steps.
Fairness: The court will not accept an agreement that doesn’t seem fair. Think reasonably and focus on one another’s best interests when discussing the terms of the agreement.
Simplicity: There is no need for complicated text. Put the prenuptial agreement in plain language, and only go into extra detail when necessary.
Be sure to review the entire final draft before your attorney files it. Ask questions if you are unsure about the terms, and speak up if something might be missing.
If I need a prenup, what can Petrelli Previtera do for me?
Both soon-to-be-spouses should know exactly what the terms of the prenuptial agreement mean. When a couple decides to establish a prenup, one person will typically have an attorney draft the document and then send it to the other for review. Our firm can act as counsel for one spouse and draft the agreement. Then, the other spouse’s attorney can review it.
Alternatively, we can review a proposed prenuptial agreement to determine whether it is complete, legal and equitable. If the document could be better, our attorneys can help make the necessary revisions.
Contact Our Firm for Assistance
For more information about drafting a prenuptial agreement, please call us or fill out our online contact form. A prenuptial agreement lawyer with Petrelli Previtera, LLC can explain the process and discuss next steps.
Call (215) 523-6900 to schedule an appointment.
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