Do's and Don’ts when Getting a Prenuptial Contract

Although the idea of a prenuptial contract may sound simple, many experts in fact refer to prenuptial law as the law “with a little bit of everything.” This is because prenups include tax law implications (both state and federal), spousal rights, real estate, corporate planning, and even child rearing. To help clarify the process, this article discusses some common “do’s” and “don't’s” of getting a prenup.

Don't’s:

1. Don’t rush into drafting and signing a prenup! In fact, many states require a holding period (i.e., California requires a 7-day holding period) and if those requirements aren’t met, the prenup is void.

2. Don't attempt to use the same attorney to draft the prenuptial contract. An attorney’s ethical obligation precludes him or her from representing both parties. More, if you include certain provisions in the prenup, both parties must be represented by independent legal counsel or the agreement is void.

3. Don't expect an “iron-clad” or “guaranteed enforceable” prenup. Courts evaluate prenups to make sure they are fair and reasonable (both at time of signing and at divorce), so engaging an experienced attorney will help you create an enforceable agreement but can never guarantee the enforceability.

4. Don’t attempt to modify child support – courts will invalidate these provisions.

5. Don’t assume that the state of your marriage should be the state governing your prenup. It usually makes sense for your contract to be governed by the state law where you have the most assets, or where you and your spouse intend to live.
6. Don't use a “standard form” agreement; each state has its own nuances in prenuptial law.
Do’s:

1. Discuss with your fiancé your financial and personal goals well before the prenup drafting process. A prenuptial agreement is one vehicle of obtaining these common goals.

2. Engage an experienced attorney to draft and help explain the proper state-specific procedures in executing a prenup. Prenups offer tremendous savings by allowing couples to avoid costly attorneys fees and judicial litigation in the event of separation. For example, a prenuptial agreement may cost $1,500, while divorce lawyers often times cost in excess of $25,000.

3. Disclose all of your and your fiancés assets and liabilities. If one party fails to properly disclose their financial position, a judge may consider the action misrepresentation and award the other party a majority of the assets.

4. Make sure the prenup is drafted in a language each party is proficient in -- some states have actually put this requirement into state statute. To meet this requirement, you may have to draft two different versions of the prenup (each in a separate language). A certified translator should be utilized in this instance.

5. Most importantly – make sure you thoroughly understand the prenup, and if it achieves your long-term goals.