Understanding Prenuptial Agreements

Over the years, you’ve probably heard of prenuptial agreements–also known as prenups–from various high-profile divorces and in movies and TV shows. However, you may be wondering if they are legally binding, and if so, whether they are something you should get. Here’s what to know about prenups as you consider your options before marriage.

They’ve Become a Lot More Popular

Marital agreements, in general, have become more popular, prenups in particular. In fact, Forbes reported that two-thirds of the family law attorneys who responded to a survey for the American Academy of Matrimonial Lawyers reported they’ve had more clients ask for prenups over the last three years (https://www.forbes.com/sites/christopherelliott/2018/07/19/read-this-before-you-sign-a-prenuptial-agreement/#59256176587c).
While divorce rates have actually dropped, especially among younger people, couples, in general, are increasingly aware of divorces. Thanks to social media, everyone can keep in touch with nearly everyone they know in addition to people they’ve only met online. This means they are more likely to see the major milestones in the lives of people who are just coworkers or acquaintances, including marriages and divorce. This increased exposure to divorce has been enough to encourage people to consider a prenuptial agreement when they decide to marry as they wish to avoid some of the unpleasantness associated with the divorces they have seen on their feeds.
In addition, more and more families are now blending families in their later life stages. This has also led to more prenups because people who have children from previous unions often want to ensure their kids are going to be protected financially in the case of a divorce and any division of assets that could arise from it.

Not All Prenups Are Valid

A prenup, in order to be valid in court, has to be created and executed following the laws in the state where you enter into the prenup. Often, these are the same laws that govern other types of contracts.
Whether a court will consider a prenup valid, even with proper execution, will still depend on several factors. For example, courts prefer the agreement be made with the involvement of family law attorneys. If an attorney was not involved, it will raise questions about each party’s understanding of what the agreement meant before they signed it. In addition, courts look for prenup agreements to be fair and reasonable to both parties. If the agreement is heavily weighted in the favor of one spouse over another, it might not pass muster in court.  It is important you fully disclose all your assets and debts before entering into a prenup to ensure its validity.

Use an Attorney

To give yourself the best chance of receiving a prenup that will pass the scrutiny of a court should you get divorced, get help from an attorney right from the start. Also, both you and your future spouse have to be honest and upfront about your respective financial situations. If either one of you kept something about finances secret from the other, it is possible the court will not accept the agreement.
Your agreement creation date is also important. If it was signed shortly before the wedding, it will raise the question of whether one of you felt pressured to sign it. Areas like this, which you may not have considered, are why it’s so crucial to have an attorney involved in the agreement drafting and execution.
For your prenup, both you and your future spouse must have your own attorneys. This demonstrates to the court that each of you had someone watching out for your own interests. It will also help balance out the agreement so that one spouse does not appear to be more favored than the other in the eyes of the court.