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.