Prenuptial Agreements, also known as Premarital Agreements or Prenups
Free consultation available for people seeking information about premarital agreements. More information is provided below.
What You Can Specify In Your Prenuptial Agreement
In a pre-nuptial agreement, the parties have broad freedom to contract regarding their property rights and spousal support. However, they are generally unable to contract around child-related issues, such as child custody or child support. There are some exceptions: for instance, parties are able to provide for the support of existing children from prior relationships. The parties are also generally unable to contract around issues regulating their “personal relationships”. A good example of a prohibited provision is an “infidelity clause”, which provides for consequences in the event one spouse cheats on the other; these are not enforceable, because they are widely construed as being against public policy. This also applies to provisions which provide for payment in exchange for domestic services, companionship, affection, and intimate relations.
How To Make Sure Your Prenuptial Agreement is Enforceable
The agreement has to come as the result of consent by both parties, who must enter into it willingly, voluntarily, and without duress or undue influence. Both parties should be represented by attorneys – in fact, the law requires it when any limitation involving spousal support is contemplated. Both parties must fully disclose their income, assets, and debts to each other.
There are also formal requirements which must be met if the validity of your prenuptial agreement is challenged. In order for a court to find that a premarital agreement executed on or after January 1, 2020, was entered into voluntarily, it must find in the writing or on the record all of the following conditions:
- The party against whom enforcement is sought was represented by independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel;
- The party against whom enforcement is sought had not less than seven calendar days between the time that party was presented with the final agreement and the time the agreement was signed, regardless of whether the party is represented by legal counsel. Please note that even though the law provides that “This requirement does not apply to nonsubstantive amendments that do not change the terms of the agreement”, it is very much unclear exactly what “nonsubstantive” means. Therefore, it is good practice to make sure that all prenuptial agreements include a 7-day waiting period between presentation of the “final final” draft and the signature of the parties.
The closest optimal time to begin working on your prenuptial agreement with an attorney is 60-90 days before the wedding date. This will allow you to work on your disclosures, have a series of calm and respectful conversation with your future spouse about your mutual expectations, and have a thoughtful draft prepared which reflects these expectations.
If the wedding date is 30-60 days away, preparing an agreement is still possible, but you will be under more pressure to get everything done timely, and will have less time to agree on a final draft. If the wedding date is less than 30 days away, I strongly suggest that you move the wedding date. It is very hard, and often impossible, to prepare a meaningful, enforceable prenuptial agreement in this time frame.
1) Why do we need attorneys? I found a form online that we can fill in online and sign – it all seems pretty straight-forward.
Answer: This is one of the most important agreements you will ever sign in your life. It governs what happens in case your marriage fails, and could alter your life dramatically. You need to get everything right the first time. It is crucial that you be educated regarding your rights, your expectations, and how to make sure these expectations are met. There are execution formalities which must be met. Additionally, if a party is not represented by an attorney, they can often raise defenses to enforcement, which may defeat the prenuptial agreement. Most times, a prenuptial agreement based on an online form is not worth the paper it’s written on, regardless of what the seller may be telling you.
2) Can’t we just sign a post-nuptial agreement after the wedding and have that serve as a substitute prenup?
A post-nuptial agreement is fundamentally different from a prenuptial agreement. The parties’ relationship one day before the wedding is legally very different than their relationship one day after the wedding. Since the parties are now officially husband and wife, they are bound by spousal fiduciary duties, which limits their ability to contract. For instance, waivers of spousal support in a postnuptial agreement are viewed by most practitioners as being unenforceable.
Please see the section labeled “Post-Nuptial Agreement” on this website.
3) How much does a prenup cost?
This varies depending on the amount of the work required. In cases where the parties are very clear with each other and their attorneys about their intentions, and a complete mutual agreement is reached without substantive negotiations, costs can be reduced significantly. Some prenups which involve creative drafting or re-negotiation of certain provisions may cost more.
My office offers a free 30-minute consultation to explain the process, the expected costs, and to answer related questions. In my experience, most clients find the estimated cost to be in line with (or, oftentimes, below) their expectations. To summarize: it certainly doesn’t have to cost an arm and a leg, and with a modicum of planning, it generally doesn’t.