Prenup Fundamentals

During the excitement of wedding planning, most couples would rather focus on flower arrangements and song lists than on a prenuptial agreement which considers the dissolution of the parties’ imminent union.  For many couples, particularly those with significant independent or family assets, prenuptial agreements can be very important.  Courts often find prenuptial agreements unenforceable, so you should be mindful of these fundamentals.

Prenuptial agreements must be given sufficient time for thorough review.  The court wants to be sure you were not under timeline duress when you signed the agreement.  For example, if you signed it three days before the wedding, you were likely under the duress of potentially cancelling a fully planned wedding after guests had begun travel to your wedding.  You should execute the agreement months before the wedding, not days or weeks beforehand.  It is important that you had enough time to carefully scrutinize the language and content of the agreement.

The court will be unlikely to enforce an agreement where both parties failed to have independent legal counsel.  Each party must have his or her own attorney to draft or review the agreement and make sure it meets that party’s needs.  Each attorney can only counsel his or her client.  Counseling both parties is a conflict of interest and malpractice.

The court will probably not enforce a prenuptial agreement unless the parties fully disclosed their financial assets to one another during negotiations for the prenuptial agreement.  You should speak with your attorney to ensure that your disclosure constitutes a full disclosure.  If your assets are complicated, your counsel might advise you to have your financial planner prepare the financial statement on your behalf.

In conclusion, if you and your betrothed have decided to execute a prenuptial agreement, make sure you are creating one that is enforceable.  It should be executed in advance of the wedding with two independent attorneys and with the full disclosure of each party’s financial circumstances.  Discussing finances and marital goals in advance of the wedding has a dual purpose—it leads to a prenuptial agreement AND increases the likelihood that you and your spouse will be on the same page during your marriage. 

How to First Discuss Divorce

1) First and foremost, divorce is an avalanche of emotions.  If you have been seeing a therapist, consider bringing up the divorce discussion during a joint session with the therapist.  If you bring up the topic without a counselor, choose a time and place that is quiet, calm, and far from interruption. 

2) Talk to your spouse about the cost of divorce.  If you litigate, you might be looking at a $40,000.00 trial per person.  If you negotiate, the cost might be closer to $2,500.00 per person.  Choose negotiation, mediation, collaborative divorce or litigation jointly so you are on the same page about the expense of divorcing.

3) Set divorce priorities.  Is consistency for your children your top priority?  Is an equitable distribution of retirement assets your concern?  Or is affordable housing worrying you?  If you are open about your concerns and you jointly prioritize, you will eliminate some of the friction.

4) Be patient.  Your spouse might need a few weeks or months to process the news, and might be unwilling to negotiate immediately.  Generally, there is not a rush.  In fact, many courts have mandatory waiting periods before they will issue a divorce.

5) Work together to collect your financial documentation.  Compile your tax returns, bank statements, and all other financial data from your marriage.  Make copies so you each have a full set.  If you are in agreement about the identification of assets, you are one step toward the distribution of assets. 

When in Doubt, Seek Counsel

Last week, I met a new client who presented as articulate and sharp.  I pulled his file at the courthouse, and learned that he’d filed over twenty complaints for modifications pro se (without the assistance of an attorney).  Many of these motions led to motion hearings, and he wound up appearing before his judge again and again in the past year.

When I asked him why he’d filed so many motions, he said he was just trying to get a final judgment of divorce.  This client is a perfect demonstration of the need for counsel.  He was seeking an obtainable outcome in the entirely wrong way.  His lack of knowledge led him to pursue an inappropriately high number of complaints for modification, which wasted the court’s time repeatedly.   His actions likely caused his judge to develop a bias against him, and potentially set him up for sanctions for frivolous filings.  And, to top it off, he still hadn’t received his final judgment of divorce.

When in doubt, seek legal counsel.  The stakes are high—you do not want to turn your judge against you or face sanctions.  Even a one hour consult could have prevented this client from over-filing the wrong paperwork.