Hiring a Prenup Lawyer

prenuptial agreement (prenup) is a premarital agreement, an agreement signed before the wedding. A prenup allows a future married couple to determine how to split properties, finances, and debt liabilities if the marriage ends.

In family law, marriage is a contract between two people. The state in which the married couple lives is the state law that governs their property rights.

However, you cannot sign a prenup for anything you want. A prenup is a legal document, and there are laws that determine if a prenup is valid or not. If you sign a prenup that is not legal (invalid), it may not be enforceable. This means you cannot use the prenup.

Hiring a prenup lawyer can make a huge difference in reaching an agreement with your partner. Seeking legal advice will ensure that your prenup is valid and enforceable. Additionally, having legal counsel by your side will protect you from signing bad prenups, which may not be in your best interest.

This article will discuss why a prenuptial agreement may be necessary and why a prenuptial agreement lawyer is important.

Why Do I Need a Prenup?

Without a prenup agreement, state laws automatically give married couples property rights and financial rights.

For example, without a prenup, married couples share equal ownership of marital property (property acquired during the marriage). Both have the right to manage and control the property.

In case of a divorce or death, state law also determines how to divide property. If a married couple wants a different property division than the state law provides, it is necessary to have a prenup.

Below are a few reasons you may want a prenup.

Keeping Finances Separate

Without a prenup, in many states, finances acquired during the marriage are assumed to be shared equally.

However, with a prenup, partners can choose to label pre-marital assets as separate property. This means that in the event of death or divorce, finances attained before the marriage (bank accounts, stocks, etc.) will remain their own separate property. They will not be shared with the other partner after the marriage.

Establishing Property Rights in the Event of a Divorce

During the divorce process, state law will determine how to divide marital property (property acquired during marriage) if a prenup does not exist.

Without a prenup, this means that marital property could be split equally in the event of a divorce. However, with a prenup, partners can decide how to split their finances.

For example, a prenup can define whether an asset is the separate property of a partner, or whether the asset is part of the marital estate.

If property is labeled as separate property, you will keep it. If property is labeled as community property, it is split equally between the partners.

Establishing Financial Rights in the Event of a Divorce

Similar to property rights during the divorce process, state law will also determine how to divide finances if a prenup does not exist.

With a prenup, partners can decide how much alimony (also known as spousal support) will be given. Without a prenup, a court will determine the amount of alimony.

Defining Financial Responsibilities During Marriage

Future spouses can use a prenup to make financial decisions, such as opening joint bank accounts, or deciding whether an estate plan will include a surviving spouse as a beneficiary.

Providing for Children From Previous Marriages

While a prenup cannot discuss child custody, a prenup can provide for children from previous marriages.

For example, a prenup can ensure that children from previous relationships inherit certain properties from a deceased parent.

Why Hire a Lawyer for a Prenup?

One of the best reasons to hire a prenup lawyer is to avoid a court declaring the prenup invalid.

In general, each partner should have independent attorneys. Both partners should have their own attorney review a prenup before signing. While partners are not required to have legal representation, courts tend to be hesitant about enforcing a prenuptial agreement when it is signed without independent legal representation.

If a partner does not have an attorney, a court may determine that a prenup is not valid if the prenup seems unfair, or if someone was forced to sign.

Additionally, states typically have strict timelines for executing a prenup. For example, states may require you to have the prenup signed seven days before the wedding. States also may require you to provide a specific amount of time for all parties to review the prenup before signing.

Hiring a prenuptial agreement attorney makes this process easier for you since lawyers can ensure that all state law requirements are met.

Drafting a Prenup

Before meeting with a prenup lawyer, future married couples should have a clear understanding of what to include in the agreement.

Creating an outline of the terms is an effective way to create a fair agreement. Each partner should fully report their income and assets, which will satisfy the requirement that each party make full disclosure of their finances.

Invalid Prenup Provisions

Although every state has different laws, there are a few provisions that are universally invalid (not acceptable). An experienced lawyer has knowledge of the type of terms that are prohibited from inclusion in a prenup.

A prenup typically cannot include the following:

  • Provisions that violate public policy: Courts will not enforce provisions that waive future child support, address child custody or visitation rights, or use financial incentives to promote divorce.
  • Provisions that involve assigning household duties: A court will not enforce a provision that discusses the division of chores, division of labor, or the number of children the future married couple will have.

Contact a Prenup Lawyer Before You Sign

If you and your future spouse are considering a prenuptial agreement, you will each need independent attorneys to represent your interests.

Since every state has different laws about the validity and enforceability of prenups, it is important to have a prenup attorney draft the prenup. If you do not seek legal services from an attorney, your prenup may not be valid in the event of a divorce or death.

Protect your best interests by having a family law attorney review your prenuptial agreement and provide sound advice.

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Don't Forget About Estate Planning

Marriage is an ideal time to create or change your estate planning forms. Take the time to add new beneficiaries (including your spouse!) to your will. Consider creating a power of attorney to ensure your spouse can access your financial accounts. Also, a health care directive lets your spouse make your medical decisions if you ever become incapacitated.

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