Contents
What Is a Prenuptial Agreement?
Why Create a Prenup?
How to Discuss a Prenup with Your Partner
What a Prenup Cannot Do
How to Get Started Creating a Prenup
Why and How to Work with a Lawyer
How to Make Sure Your Prenup Is Valid
Enforcement and Nonenforcement of the Prenup
Postnuptial Agreements
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Why and How to Work with a Lawyer
Though you can (and often should) work without a lawyer to negotiate much of the substance of your prenup, it’s important for you and your partner each to have a lawyer when creating and finalizing the prenup. Talk with lawyers only after you have a good idea of what you want your prenuptial agreement to do: this will save you time and money.
When choosing lawyers, it is essential to hire knowledgeable matrimonial attorneys—one for each of you—who have experience dealing with prenuptial agreements in your state. It’s important to work with a lawyer because a lawyer can help:
- Make sure everything is clear: You want to be sure that the document you sign means what you think it means and binds you to the agreement that you think you have negotiated in the event that the prenup is read and interpreted by an actual court in your state. Again, keep in mind that laws governing marriage, property, and prenuptial agreements vary widely from state to state. Even states that have similar prenup laws may differ in their rules about divorce, property ownership, spousal support, and responsibility for debt, as well as in their formalities regarding execution of agreements. Moreover, each state court has its own way of interpreting that state’s prenuptial agreement statute and related laws, which should guide the drafting of prenups in that state. These differences can be very subtle and technical—to make sure the agreement you sign will actually be valid and mean what you think it means, it’s crucial to have the document reviewed by an attorney who has experience dealing with the peculiarities of your state’s laws.
- Make sure the prenup is valid and enforceable: Though it isn’t formally required that both parties have lawyers, the likelihood that your agreement will be valid and enforceable when interpreted by a court is much higher if each of you has been advised by separate and independent counsel. When both parties have lawyers, a court will be more likely to uphold the agreement because the court will be more
likely to find that:
- There was ample time for both parties to fully consider the agreement
- Both parties actually understood and appreciated what they were doing
- One party was not unduly pressured or coerced into signing
- The terms of the agreement itself were fair and reasonable when they were drafted
- Explain specifics and practical considerations: A lawyer who has experience with prenuptial agreements can explain how they actually work out in the real world and will be able to advise you toward a fair agreement that protects your interests.
Ways to Work with a Lawyer
Lawyers can have a way of making things more contentious, so be sure that the lawyers you choose are willing and able to work in a cooperative and collaborative manner to arrive at an agreement that’s fair for both of you. In deciding how exactly you want to utilize your lawyers, you have three major options:
- Work without a lawyer to come up with a blueprint, then have your lawyers work with each other to come up with the final document.
- Work with one attorney (who will formally represent only one of you), then have a second attorney (representing the other) review what you came up with.
- Negotiate in a four-way meeting at which both lawyers are present.
How to Find and Choose a Lawyer
Whichever approach you choose, you’ll need to find two experienced matrimonial attorneys. If you don’t know any attorneys or need help finding a lawyer with experience drafting prenuptial agreements, use a lawyer referral service run by the state or local bar association in your area. You can find contact information for referral services in each state, as well as helpful information on finding and interviewing lawyers, on the American Bar Association website at www.abanet.org/legalservices/findlegalhelp/home.cfm.
It’s crucial that you feel comfortable talking with your attorney and that he or she understands what you want to accomplish with your prenuptial agreement. Good lawyers will work with you to achieve your goals. Questions to ask a potential lawyer or firm include:
- Does the firm handle prenups?
- How long have they been doing this?
- Has this attorney prepared prenups before?
- Is the attorney familiar with your state’s marriage and divorce laws?
- How long will the process take?
- How much will it cost?
Having a potential lawyer answer these questions up front will make it easier for you to feel comfortable with your selection and will make the entire process run more smoothly.
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