Scholars have been teaching that prenuptial agreements date back thousand of years to the Ancient Egyptians. In Anglo culture, prenuptial agreements date back centuries. In early cultures and “olden days,” the parents of engaged couples would negotiate the terms. Now, couples negotiate their own terms. Despite popular belief, these types of agreements are not just for the rich and famous.
Fast forward to 2019, the divorce rates in America remains close to 50% so it’s not unusual for many engaged or recently married individuals to consider entering into a prenuptial or post nuptial agreement commonly known as a “prenup” or “postnup” (for the purposes of this article, “‘nup” for short.)
This blog will discuss the reasons some couples might want to enter into a pre or postnup and the importance of hiring the right attorney to counsel you, draft your agreement, or litigate the enforceability.
(Note: In my family law experience, it is more common for men to initiate the services of an attorney to draft a pre or postnup but many women today are seeking the assistance of attorneys also for the same reasons as outlined below but this article is written for ease in the male perspective.)
Terms of Endearment
Prenup: An agreement made by a couple before they marry setting forth what will happen to their assets, income, debts and other significant financial concerns in the unfortunate event of a divorce, legal separation or death. A prenup is signed before the marriage. CA has a strict deadline for the parties to present and sign the agreement a specific amount of days before the wedding date – Not in the limo on the way to the chapel.
Postnup: Same type of agreement but happens after the parties get married and must not be in contemplation of divorce. It would be a bad idea to offer it to your spouse the day you have a consultation with a divorce attorney.
The Dreaded Conversation
Things have gotten serious and your talking marriage with your girlfriend. The idea of needing a prenup has never been brought up before. The conversation is uncomfortable to initiate. Will she get mad, offended, decide she doesn’t want to marry you, or even guilt you into shelving the idea altogether. Will it be a deal-breaker?
Sure, it may cause one (or more) of the above but after you had the chance to tell the love of your life how it will benefit both of you, the awkward silence, or the cursing argument will be a flash in the pan. It’s true, a pre or postnup can benefit un-wealthy individuals, and even the less wealthy half of an un-wealthy couple. In short, ‘nups are not just for the rich.
What’s Good for the Goose….
Now that you have broke the ice and plead your case, the future Mrs. now understands that even though she thinks neither of you have anything of value now, you can protect each other from certain events such as acquiring excessive debts during marriage. If you brought something into the marriage, you can use your ‘nup as a way to pass it to your children from a previous marriage following an untimely death. She realizes this decision gives her control of the divorce rather than a judge who doesn’t know or personally care about either of you. Now she feels better and understands that this a practical matter of preparation for the worse case scenario. You squeeze her and assure her that you won’t even need it – it’s just in case.
For Richer Or Poorer
We have established that you don’t have to be rich to enter a ‘nup, but what if you are loaded? Then a prenup or postnup is a powerful tool to protect assets should a couple of means divorce. Your fiancée may react essentially the same and accuse you taking all the romance out of the engagement (or honeymoon) but once she learns that she can enter her own terms to plan her future after she becomes a divorcee, her tune may change. A prenup may be something she enthusiastically enters. How many times have you heard a friend or colleague say “I got screwed” after their divorce? The ‘nup can help you avoid the, “I got screwed” conversation.
Only Good If We Need It
Marriage is more than your wedding day. It’s a contract you entered binding yourselves together in family, finances, and the future. It’s nobody’s intention to get divorced. A year’s worth of wedding planning, tens of thousands of dollars on the reception. $75 per plate. A $2,000 cake. Oh, the floral arrangements alone – don’t get me started. That was a celebration of something magical – your union, ‘til death do you part. You got down on a knee, you took those vows because you want to make her happy for the rest of her life.
So, although your ‘nup is printed on fancy 80lb paper, you expect (and hope) it sits for decades collecting dust. It’s only there if necessary, much like life insurance, an umbrella, your classic car collection, or a vintage Rolex. All essentials too, right? Ok, different kind of essential but you get the point. It’s there if needed.
Dusting Off the Old Scrolls.
Well, you didn’t think you’d need it, but marriage isn’t easy, it takes time to realize you weren’t the right fit, didn’t have the same dreams, or a mistake or two was made that couldn’t be fixed or forgiven. How does this ‘nup work now that divorce is on the table?
First, you hire a seasoned divorce attorney who is experienced in pre and postnup review and litigation. Yes, litigation. Even though you thought the ‘nup was to avoid court, the
Mrs. has decided that she will contest the prenup. Now, you need to make sure that it is enforceable in court. The right attorney can be invaluable in a situation like this. Litigating a contested ‘nup can cost you dearly on the back end, (a small fortune).
Remember it is extremely important that you hire an attorney with the same experience to draft the agreement as it is to litigate it.
Is It Diamond or Is It Glass? No, Not the Engagement Ring.
With extensive pre and postnup litigation experience, a family law attorney can discover the ins and outs, and in-betweens of pre and postnup enforceability. An attorney in the thick of court room battles, depositions, and expert testimony on this issue will have a much better understanding of what makes an agreement iron clad, and what makes it thrift store glassware. At the end of the day, it is at the court’s discretion to reject parts or all of the terms in the agreement if they violate public policy. An expertly written agreement is key.
Plan and Execute
Moore Family Law Group drafts pre and postnuptial agreements using strategic methods on the front end that can save you tens of thousands of dollars on the back end. Our agreements protect assets, income, and protect spouses from the default divorce rules. MFLG can counsel you through the review of a pre or postnup and can strategically represent you in court whether you are fighting for enforcement or if you believed you entered into an invalid agreement.
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