“Marry in haste, repent at leisure” goes the old adage. The same can be said for being too quick to enter into a legal prenuptial agreement or prenup. If you and your betrothed want a prenup, don’t rush.
There are numerous good reasons to draw up a premarital agreement. The first is that it prompts candid discussions about finances, which is important for any healthy marriage. Money is one of the biggest reasons married couples’ fight. A prenup can help guide financial decisions during the marriage, not just in case of divorce. Couples can use it to outline the management of household expenses and joint bank accounts, keep finances and businesses separate, and put other arrangements in writing. It can protect one spouse from the other’s debts and establish property rights and distribution in case of death.
Of course, a prenuptial agreement also forces the engaged couple to consider the sad possibility of divorce. If the marriage were to fail, they might wish to protect their family’s property and estate, their own assets in case they remarry, and simply reduce the risk of a long, complicated, costly divorce.
What Can’t Be in the Prenup
The prenup should be focused on financial matters, not personal obligations such as who does which chores. It doesn’t deal with whether or not to have children, or how kids are to be raised. A premarital arrangement cannot spell out terms for child custody or child support, as those decisions must be made in the best interests of the child, who may not even be born yet. Of course, the prenup cannot make false claims, omit important financial information, or call for anything illegal.
Here are some prenup red flags that spell trouble for a white wedding.
- The prenup was sprung on you last-minute. Once the venue is booked, guests are invited, the cake is ordered, the dress has been fitted and tuxedos rented, your wedding plans are full speed ahead. Insisting on a prenup mere weeks or days before the big event creates undue pressure to sign without asking necessary questions. A prenuptial agreement is an important legal document. It should never be rushed or forced on someone. An agreement that someone was coerced into signing can be challenged in court and thrown out.
- Your attorney hasn’t reviewed the agreement or your intended doesn’t have legal representation. Even if you let your intended partner take the lead in drafting the prenup, an attorney who represents you and only you should review it and ask the necessary questions. Remember, no lawyer can fairly represent you both–that is a conflict of interest. A prenup could be thrown out later if both spouses are not represented by attorneys.
- The terms are too vague, or too specific. If the terms of the agreement are unclear or too broad, it may not be enforceable.
- The prenup covers only one person’s assets and interests. If one person has significantly greater financial means and property that they wish to protect, the prenup might be centered on that. But a good prenup will specify fair terms for both parties, both during the marriage and in the case of separation, divorce and death.
- The prenup omits debts or assets. Hiding important information that the other spouse had a right to know about before signing the agreement, such as large debts, property or personal assets, will get the agreement thrown out. All financial information presented in the prenup should be both true and complete.
- Important financial matters are missing. An example is if one spouse agrees to pay for the other to attend college or graduate school. That is a sizable financial commitment, and the responsible party’s attorney should make sure to have this or other arrangements included.
- The prenup can be seen as encouraging divorce. If the agreement is written in such a way that one party clearly stands to benefit from getting divorced rather than staying married, a judge is unlikely to allow it without some modifications.
What Makes a Good Prenup?
By law, the terms should be specific, fair and reasonable. An agreement should stem from honest discussions between the engaged couple, rather than being dictated by one person–or their family. Full disclosure of assets and debts is essential. The agreement must be made without coercion, and should not be signed under duress. Above all, each party should seek the advice of their own legal counsel before they sign a financial agreement before they marry.
Prenup or not, we urge all engaged couples to Ask These Questions Before You Tie the Knot!
All of us here at Raza & Jones, LLC understand this is a challenging time for our clients. As a family law firm, under St. Louis County’s Order pertaining to COVID-19 we are considered an essential business, and we remain open and available to all our clients. Our entire firm is working remotely, using our videoconference account to meet with clients or speaking by telephone. We are committed to delivering the same high standard of compassionate, effective representation we are known for, in the face of rapidly changing circumstances.
With a combined 30 years in family law, the attorneys at Raza & Jones, LLC, will provide the legal guidance you need. For questions, or to schedule a confidential consultation, call 314-449-8830.