Prenuptial Agreement Lawyer
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 with your future spouse before celebrating and planning your future.
Before you enter the contract of marriage, you should have a plan about what to do if you decide to divorce. Establishing a prenuptial agreement before marriage is smart financial planning. This legally-binding document does not look forward to a couple’s imminent divorce. Instead, a prenup is a private contract that outlines the decisions regarding each spouse’s property if they dissolve their marriage in the future. If you do divorce and have a prenuptial agreement, you and your spouse won’t have to suffer through the emotional and financial costs of dividing every asset.
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. It can address important considerations such as property division, separate property, and spousal support.
It cannot be stressed enough: do not attempt to hide assets when putting together a premarital 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.
What a Prenup Can Do
Set rules about marital assets: A prenuptial agreement protects spouses’ rights and obligations to their property. In other words, the document decides ahead of time which items are marital assets and which would be separate in the event of divorce.
For example, if one spouse owned a home before marriage, the document might state that he or she would have full ownership. That also includes full obligations to the financial costs associated with the house.
Protect one another from the other spouse’s debts: The document can limit each spouse’s debt liability. That way, creditors cannot go after all the marital property if one spouse accrues debt.
Protect children from previous relationships: Spouses with kids from previous relationships can entitle them to money and property.
Protect family property: Couples can note heirlooms, inheritances, business, and other family-owned property in the prenup. Doing so keeps their ownership within their birth families.
Simply put, prenups protect spouses’ property. A couple can typically include anything financial-related in the agreement.
Frequently Asked Questions
Below are answers to questions clients commonly ask us about prenuptial agreements.
Why do I need a prenuptial agreement?
- 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.
What items Cannot be covered in a Prenup?
Determine custody or child support: Spouses cannot include decisions about where their children (or future children) will live in the event of divorce. They also cannot predetermine how much a spouse would pay in child support.
Violate the law: A prenup cannot defy criminal law or public policy.
Alimony (in most cases): Very few states will enforce spousal support obligations in a prenuptial agreement.
What information should be collected when we start talking about our prenuptial agreement?
Ready to write up an agreement? Use the below checklist to get started.
- List the property and assets you and your fiancé own separately.
- Identify the assets you bought together.
- List your separate debts and other liabilities.
- Note any inheritances you know you’ll each receive.
- Talk about your future financial goals.
- Write down important financial issues you would like to include.
What are the steps involved in creating a strong prenuptial agreement?
Tackle the document as early as possible. When you give yourselves enough time, you’ll be able to thoroughly consider the terms you want to include and to make any necessary revisions without rushing.
Before you meet with an attorney, there are a few lists you and your partner can make. In our prenuptial agreement FAQ, our attorneys outline the factors to think about ahead of time:
- All your property and assets
- Your debts and other liabilities
- Inheritances you have or expect to receive
- Your future financial goals
- Any financial-related issues that might be important to discuss
By getting started early and having a private discussion before your first meeting, you and your soon-to-be spouse will be ready to create a great first draft.
Be reasonable when coming up with the terms of your agreement. Avoid a one-sided prenup. It will not hold up in court if you ever need to use it. Creating a strong prenuptial agreement is an exercise in communication. Give each other the same respect and courtesy you always do.
Once you know all the terms you want to include, be as clear as possible. Use plain language in your agreement. There is no need for technical terms, legalese, or minute and unnecessary details.
In addition, be sure to draft a clause to protect each other in the event of death. It’s a good opportunity to identify how your spouse will be taken care of.
Make sure you read the entire document before signing it. Avoid rushing into an agreement you aren’t comfortable with or clear on. Take your time and ask any questions you might have.
You and your partner should each have your own lawyer when creating the agreement. One partner will typically have an attorney draft the document and then send it to the other for review. At Petrelli Previtera, we have served clients on either side of the process.
If you’re ready to start the process of creating a prenuptial agreement, feel free to call our firm. We can further discuss the steps you and your partner should take.
How can my future spouse and I prepare for our meeting about drafting a prenuptial agreement?
- 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.
Why Do Prenuptial Agreements Have Such A Bad Reputation?
What should we focus on when drafting a prenup with our attorneys?
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.
When To Get A Prenuptial Agreement?
The most important thing to keep in mind is having open communication with your spouse if a prenuptial agreement is something you want.
Can You Have An Agreement After Marriage?
When To Talk To A Lawyer?
If I need a prenup, what can Petrelli Previtera do for me?
Is Cryptocurrency considered an asset for a prenuptial agreement?
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.