Any spouse is entitled to a fair prenuptial agreement. Here are 9 steps a spouse can take to achieve a fair prenuptial agreement.
1. Understand What a Fair Prenuptial Agreement Is
A prenuptial agreement is a contract written and agreed to by both spouses before marriage or civil union. The main purpose of a prenup is to divide assets/debts and lay out spousal support in the case of divorce or death. Without a prenup, your state’s laws will determine how marital property is divided during divorce.
Prenups can be useful for generating transparency and setting expectations for a good marriage. Money and possessions can be a common issue of disagreement after a marriage. A prenup protects you from unpredictable developments. It can help you have critical conversations and guarantee your money is managed the way you want it to be, both during and after your marriage. A prenuptial agreement does not imply you do not trust your partner but indicates you are committed to long-term achievement in a marriage.
What can a prenup do?
A prenuptial agreement is used to settle financial concerns if a marriage ends in divorce. A prenuptial agreement can also define financial roles and responsibilities during marriage. A basic agreement may list assets to remain in the original owner’s legal possession after divorce. Details discussed in regards to prenups can include:
- Property acquired before or during the marriage, and
- Financial obligations.
Prenup agreements can focus on the divisions of assets after divorce, as well as during marriage. For example, a prenuptial agreement can grant both parties access to a combined bank account for common costs, savings, and investments. Each party can keep a portion of income separate. Prenups can lessen disputes over how and why one spouse spends marital funds and allow each partner financial autonomy to spend their own money during the marriage.
What can’t a prenup do?
The following cannot be outlined in a prenuptial agreement:
- Provisions detailing anything illegal
- Decisions regarding child support or child custody
- Waivers of alimony rights
- Provisions encouraging divorce
- Details about personal, rather than financial matters
Related: What to Include in a California Prenuptial Agreement
2. Communicate with your partner.
Unfortunately, prenup agreements can be viewed negatively and as a sign of mistrust from your partner. The first time you bring up a prenup your partner may be defensive or hesitant. Explain to your partner why a prenup can allow proper communication to prevent a strenuous divorce. A prenup agreement can outline what spouses may want out of divorce. Partners can communicate what they want and need through a prenup.
3. Give yourself ample time.
The more time you have to write the prenup, the less pressure there will be on you and your spouse. Writing a prenup can be stressful and a time constraint can make the process more contentious. Having more time will also give you the ability to go through several drafts of your prenup, and make sure you and your intended spouse are completely happy with the contract.
Related: How to Get a Prenup in California: Prenuptial Agreements
4. Get independent representation.
Each party having the opportunity to obtain independent legal advice about the terms of a prenup makes courts more likely to determine that each person understood the contract and, therefore, more likely to uphold the agreement. The judge may see only one party in a prenup having an attorney as a red flag. If either spouse entered into the contract without understanding the benefits and risks with the help of an attorney, a court may nullify the contract during divorce proceedings. Separate legal representation helps ensure you and your spouse get what you want from the prenup.
Related: How to Find a Prenuptial Agreement Lawyer in California
5. Full disclosure
Full disclosure of finances, assets, and debts must precede a legally binding prenup. Certain states allow for a waiver of finances, which could be a slippery slope. A prenup can be deemed unenforceable if one or both parties failed to disclose finances. Accurately dividing property can be tricky if one or both partners are keeping assets secret.
6. Ask for help.
Writing a prenup can be very stressful and can sometimes cause tension between you and your partner. Consider involving a third party if you and your spouse are having trouble agreeing to some prenup terms. A mediator, counselor, or religious advisor can serve as unbiased third parties to help you and your partner come to an agreement.
7. Make reasonable asks.
A prenup can and should protect and serve the interests of both parties. Prenuptial agreements are commonly misconceived as only safeguarding the assets of the rich or famous. The reality is, we all have assets, liabilities, and property we are entitled to keep should a marriage irrevocably fail. A prenup needs to be realistic of what the future would be like for either partner without the other.
8. Be thorough.
Prenups can require you to think about a future where you are no longer with your partner. The uneasiness of this process may cause you to speed through and sign without thinking the contract through. Legal counsel or a mediator can help because they can look through the contract and decipher anything you do not understand. Although it may be a hard reality to face, 50 percent of marriages end in divorce. Consider creating a prenuptial agreement that leaves both parties happy after divorce.
9. Voluntary execution
Both partners need to be on board with the terms of the prenuptial agreement before signing. Valid prenups must be voluntarily signed without coercion, threats, or force used by one spouse against the other. If you are hesitant about signing a prenup because of the terms listed in the contract, you can modify the document as much as you’d like (before you get married). Voluntary execution is crucial to a valid prenuptial agreement.
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