A prenuptial agreement is a contract a couple will sign to ensure they have individual control over some legal rights that a traditional marriage certificate would otherwise supersede. This agreement protects one’s assets and property in case of a divorce. It’s an important agreement for many marriages and civil unions, but if you continue reading, you’ll learn a few things you should know before signing a prenuptial agreement.
One of the first things you must know before signing a prenuptial agreement is that you should work with an attorney if you want to go down that path. While having your own knowledge makes the process clearer, an attorney understands complex details of the law. In addition to knowing the different ins and outs of family law, they know how to ensure you have fair representation in your prenuptial agreement. They know the minutia of your state’s marriage laws and can clarify everything. In case your marriage doesn’t work out, they’ll have laid everything out in a way that protects your rights and your assets.
The purpose of a prenuptial agreement is to keep assets and liabilities separate in case the marriage doesn’t work out. For that prenuptial agreement to work and accurately protect those assets, you must fully disclose them. Some like the idea of a prenuptial agreement, but they’re scared or embarrassed to discuss their liabilities and debts. Some also fear that even with a prenuptial, some of their assets could be at risk just by disclosing them.
Remember that by disclosing assets and liabilities, you are protecting them, and you are protecting your partner. By not disclosing certain things, the court could render the entire prenuptial agreement void, or those assets could end up split. Putting all this financial information out in the open is important for a healthy relationship, but it’s also essential for the agreement’s legitimacy.
Another thing to know with your prenuptial agreement is that it needs to be fair. For a prenuptial agreement to be just, it must be conscionable and fair for both parties. Otherwise, a judge could declare it void.
What does fair look like exactly? A judge can rule that a prenuptial agreement is unfair if the division of assets is disproportionate. One spouse could technically own everything before marriage and include every asset in a prenuptial, meaning they would hold on to everything in a divorce while their spouse gets nothing. A judge may view this as unreasonable and choose to consider other factors, such as the couples’ lifestyle post-marriage and any burdens that may happen because of the divorce.
A common misconception many have about prenuptial agreements is that they are set in stone and cannot change. You can change a prenup numerous times, but both parties must agree. This factor is fantastic when you and your partner obtain new assets and liabilities but are unsure how you initially want to divide them. A wonderful thing about a prenuptial is that you can add a sunset clause, which stipulates that it will be void if you do not return and revise it by a certain date. Doing this is great for those couples who want to ensure everything is clear and works instead of simply taking their prenuptial for granted.
For some couples, the idea of a prenuptial isn’t something they broach until they’re already close to their wedding date. It can seem like a simple last-minute thing to do, but you should spend a few months mulling it over, conversing with each other and an attorney about what works best. You’ll also need to spend some time collecting tax records, pay stubs, and declarations of assets and liabilities.
Additionally, you must sign a prenuptial agreement at least 30 days before your wedding. However, as mentioned already, you should do this sooner than later to ensure you and your future spouse have time to discuss revisions. You can amend a prenuptial later, but you can craft an effective agreement now instead of worrying about it later. If you’re planning on working with an attorney, you should expect the process to take a few months because they’ll also have other projects and clients to work with. Altogether, it can be a time-consuming project, so you should take care of it sooner if it sounds like something you want to pursue.
Some view a prenuptial as a set of stipulations their partner must abide by to stay in the marriage, but this isn’t the case. In most states, a prenuptial can only include provisions regarding spousal support, property, debt allocation, and inheritances. A prenuptial agreement can’t contain incentives or ultimatums that one spouse can hang over the other’s head. For example, you can’t have a provision in your prenuptial that your partner must stay at home and raise the kids or that they cannot drink. Provisions like this are not legally binding and can potentially invalidate the entire prenuptial agreement.
Another thing you should know with your prenuptial agreement is that the court can rule it void if new information comes to light. Both parties should agree on the prenuptial and disclose all assets and liabilities. If someone fails to disclose assets or if one partner did not willfully agree, the court can rule the agreement as fraudulent. Some of the main reasons that a judge may rule your prenuptial to be fraudulent include the following.
Any one of these factors is grounds for the court to dismiss your prenuptial.
This fact may not surprise some, but it is still worth mentioning. Children, whether born before or after the prenuptial, can complicate the process. While you cannot use your prenuptial to dictate child support and child custody, you can lay out financial considerations for children from previous relationships. Without including stipulations for these children, in the case of a divorce or even death, they may miss out on assets you wanted them to have. Detailing property inheritances for these children is critical.
A prenuptial agreement can be wonderful for some couples, but you should know these important things before signing one to ensure you make the right decisions. If you remember anything from this list, it’s that you should work with an attorney, and here at Schiller DuCanto & Fleck, we have you covered. We are some of the best prenuptial agreement attorneys in Chicago and will gladly help you draft a legally airtight prenuptial that works for both partners.