Hiring a Prenup Lawyer
A good lawyer -- well, two lawyers, actually -- will ensure that a prenup fits everyone's needs and stands up to any legal challenges. The law considers marriage a contract between two people. So unless a married couple creates a legally binding agreement that states otherwise, the law in the state where they live will govern their property rights.
A prenuptial agreement, also called a premarital agreement, or a prenup for short, allows a couple to set the terms of the property rights for their marriage, among other things. However, there are often a number of requirements that must be met for a prenuptial agreement to be binding.
Hiring a prenup lawyer can make all the difference, not only in reaching an agreement, but also in getting it memorialized in a document that will stand up in court. Below you'll find a helpful discussion on why you would want a prenuptial agreement and the role that a prenup lawyer can play in the process.
Reasons for Having a Prenup
Under state law, each spouse receives automatic property rights unless a legally enforceable agreement provides otherwise. For example, spouses share ownership of some property acquired during the marriage and both have the right to manage and control the property. If one spouse dies or the parties divorce, state law dictates the disposition of the property. If the parties wish to divide the property differently, it is necessary to create a prenup.
Here are some common reasons why you would want to make a prenup:
- Keeping finances separate. Some kinds of property acquired during marriage automatically become part of the community or marital estate. A prenup can define whether an asset is the separate property of one spouse or whether the asset is part of the marital estate.
- Providing for children from prior relationships. A prenup can ensure that the children from previous relationships inherit certain property from a deceased parent.
- Establishing property rights in the event of a divorce. In divorce, state law will determine how to divide certain property acquired during marriage if a prenup does not exist.
- Defining financial responsibilities during marriage. A couple can use a prenup to make financial decisions like whether to open joint accounts or whether an estate plan will include a surviving spouse as a beneficiary.
Why Should You Hire a Lawyer When Making a Prenup?
One of the best reasons to hire a prenup lawyer is to avoid a court declaring the prenup invalid. In fact, it is advisable to hire two lawyers, one for each of the parties. While neither is required to have legal representation, courts tend to be more cautious about enforcing a prenuptial agreement signed by a party that didn't have independent legal representation. In this situation, especially if the prenup seems unfair to the party without legal representation or if there are concerns about coercion or duress, a court may invalidate the prenup outright.
In addition, states typically have strict timelines for executing a prenup that must be followed for it to be deemed valid. For example, you may be required to have it executed a certain number of days before the wedding or you may be required to provide a specific amount of time for all parties to review it before signing. Hiring a prenup lawyer makes this process easier for you since lawyers can ensure that all of the procedural requirements are met.
Drafting a Prenup
Before meeting with a prenup lawyer, a couple 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 party should also fully report their income and assets, which will satisfy the requirement that each party made full disclosure of their finances.
An experienced lawyer has knowledge of the type of terms prohibited from inclusion in a prenup. Although every state has different laws, a prenup typically cannot include:
- Provisions that violate public policy: Courts will not enforce provisions that waive future child support, place limits on future custody or visitation rights, or use financial incentives to promote divorce.
- Provisions that involve nonmonetary matters: A court will not enforce a nonmonetary condition and may even set aside the entire prenup if it includes conditions such as the division of chores or how many children to have.
Contact a Prenup Lawyer Before You Sign on the Dotted Line
If you and your future partner are considering a prenuptial agreement, you likely have many questions surrounding the laws and different terms you may encounter. Making sure it's a valid agreement is also extremely important. Protect your best interests by having a family law attorney review your prenuptial agreement and provide sound advice.