What Is a Prenuptial Agreement?
A prenuptial agreement, also known as a premarital agreement or antenuptial agreement, is a legal contract entered into by two people before they get married. The purpose of the contract, as defined by Texas Family Code §4.001, is to establish the terms of their marriage, including financial responsibilities and the division of assets in the event of divorce or death. A prenuptial agreement can cover a wide range of issues, but it must be in writing and signed by both parties to be enforceable under Texas law.
One of the primary functions of a prenuptial agreement is to protect the interests of both parties in the event of a divorce . By outlining how property will be divided and spousal support paid, a prenuptial agreement helps to avoid costly litigation over assets later on. Additionally, a prenuptial agreement can help prevent a court from making an unjust division of property in the event of a divorce.
When drafting a prenuptial agreement, both parties need to fully disclose their assets and debts. Failure to do so could invalidate the contract. Because of the binding nature of the prenuptial agreement, it is advisable that both spouses have individual legal representation before signing the document. If the prenuptial agreement is in compliance with Texas law, it will be upheld by the court unless it is proven to be unconscionable or entered into under duress.
Your Area’s Prenuptial Agreement Laws
Local legislation can play a critical role in the enforcement of a prenuptial agreement. For example, California family law requires both spouses to make a "full and fair financial disclosure" to one another in order for a prenuptial agreement to be considered valid and enforceable. Generally speaking, this means that neither spouse can hide or conceal assets. If it can be shown that one spouse failed to disclose certain assets or concealed them, then a judge can void the agreement.
In California, the law allows a judge to award attorney’s fees to the "economically weaker" spouse if that spouse can show that the other tricked or deceived them into signing the agreement, whether through fraud or a failure to disclose all their assets and income. California law provides similar remedies for the economic abuse of the less financially prosperous spouse. The prenuptial agreement can be rejected for being one-sided and effectively leaving the economically weaker spouse with nothing in the event of divorce or death. Psychologists have established that when one spouse has little or no say in a prenuptial agreement (because they simply lacked the opportunity to review it, negotiate its terms, or seek independent legal advice), that spouse is likely to be suffering from economic abuse.
Arizona has codified the terms of prenuptial agreements in Arizona Revised Statutes section 25-202. The law references many provisions likely to be included in a prenuptial agreement, such as the right to own separate property and how alimony would be assessed. However, there are some exceptions to these provisions where the parties cannot contract away certain legal rights. For instance, the parties may not waive their right to postdecree remedies for domestic violence.
Arizona Revised Statutes section 25-204 defines the grounds under which a prenuptial agreement can be modified or terminated. In accordance with this provision, the amendment or termination of a prenuptial agreement must either be in writing or signed by the party against whom enforcement is being sought.
Florida law is very specific about the unique requirements for a prenuptial agreement to be considered legally valid and enforceable. The law requires the parties to the agreement to be represented by "independent legal counsel" (Fl. Stat. 61.79). Independent legal counsel means legal counsel who is also licensed to practice law in Florida, and who meets with the prospective spouse (or both spouses) privately without the presence of the other party. Each lawyer must give the other spouse at least three days to consider the provisions of the prenup before having him or her sign.
What Are the Advantages of a Prenup?
Prenuptial agreements have many benefits. The most obvious is the fact that they protect one spouse against the debts of the other. Some may assume that debt protection is only beneficial to wives, but in reality, a prenuptial protects both parties from one another’s bad financial habits, even when the husbands are often the one’s who manage the family’s finances. Making sure that you are not responsible for a significant amount of debt that your spouse amassed before they even met you should be reason enough to pursue this type of agreement.
However, a prenup also allows you to make decisions regarding concrete assets that you wish to protect. For example, if you own a home or business, a prenuptial agreement can guarantee that you will continue to enjoy full ownership of it, regardless of how long the marriage lasts and any financial contributions that your spouse might make down the line.
In many cases, many people may not know whether a prenuptial agreement would be of benefit to them. In these cases, an attorney can help provide additional guidance. When signing a prenuptial agreement in the state, the law requires full financial disclosure from both parties. If one spouse does not disclose all of his or her finances, the result can be a void agreement.
While some people are unaware of what benefits a prenuptial agreement might bring, even those who do understand the advantages of the agreement can still be unsure about how to determine whether a prenuptial is convenient for them. If you are interested in learning more about how a prenup could be beneficial in your personal situation, an attorney would be happy to go over all of the important details with you.
Finding a Local Attorney to Help with a Prenup
If you’re in the market for an attorney to draft a valid prenuptial agreement, your first introduction may come while seeking legal guidance for your upcoming marriage. Speak to your family lawyer or whoever ordered your divorce. He or she may be able to point you in the right direction. Ask your local bar association about badging lawyers in your area who handle prenups and related agreements. Some attorneys focus on specific issues or types of law, such as business or ecological matters. Many legal professionals provide a broad range of services. Speak with several lawyers, and ask questions about their practices to determine whether they can offer dedicated service for your particular issue and situation. Check their personal and professional online reviews, when available, to make sure they have a solid reputation. Contact professional organizations in your area to find out whether they maintain a network of attorneys who practice and specialize in family law. Some nonprofit associations provide free or reduced rate referrals for those in need. Ask the professionals you contact to refer you to an attorney who specializes in prenuptial agreements. Conduct an online search to find law offices in your area that specialize in family law. Many websites provide detailed information about the types of cases a firm handles, including prenuptial agreements and other related issues. Some websites also feature client testimonials and ratings. Look for a "find an attorney" link and follow the required prompts to use the site to get most any question you may have answered as you seek a qualified lawyer.
Debunking Common Prenuptial Agreement Myths
There are a number of common stereotypes associated with a prenuptial agreement as they relate to divorce. People believe that prenups undermine the institution of marriage and that they are only for wealthy people. Neither of these assumptions is true. First, prenups do not necessarily undermine the institution of marriage. A prenup can ensure that if you and your spouse choose to get a divorce, you’ll minimize the time and stress you and your family have to go through to divide assets and property. If the prenup is fair, it can even save you expensive legal fees, which might otherwise hurt the marital estate. In other words , a prenup can actually benefit the institution of marriage by minimizing the cost of divorce. As for the other stereotype, prenups are not just for wealthy couples. Prenups can benefit couples of any income level. The stereotypical prenup ensures that a wealthy spouse protects his or her assets before marrying someone with lower overall wealth, but that’s not the only way prenups can benefit couples. Priests, teachers, police officers and more can benefit from the protection of a prenuptial agreement in the event of a divorce. In short, prenups aren’t just for wealthy couples. Anyone who has something to protect can benefit from the protection of a prenup.
How to Draft a Prenup
Once a decision has been made to enter into a prenuptial agreement, the process of drafting the agreement begins. While the initial consultation is vital for educating clients on what it can and cannot accomplish, the draft phase is equally significant. Experienced attorneys will walk clients through what "should" go into the agreement and make sure they are not being inappropriate best practices. The following steps are what you can expect when entering into the drafting stage for a prenuptial agreement:
- Begin by scheduling a consultation with you and your future spouse.
- Once you agree on the concept of entering into an agreement, an attorney will work with you to draw up a draft.
- Review the agreement collaboratively with your future spouse. This means that if your attorney does the drafting for both of you, they will work together with the other party’s lawyer to ensure fairness in the agreement.
- Review the draft with an individual attorney – each party will have their own personal counsel review the agreement (even if the other party’s attorney drafted it).
- After making any final changes or additions to the prenuptial agreement, you and your attorney will have it finalized and signed.
Consequences of Not Having a Prenup
While the debate continues on the need for a pre-nuptial agreement as a means of protecting a spouse in the event the parties to the marriage become divorced, the law in Georgia is that a prenuptial agreement is presumed valid and will be upheld unless it can be demonstrated that the agreement was brought about by fraud, or through coercion and duress, and where there is no merit in the claim that the agreement is unconscionable.
Because Georgia law requires a full disclosure of a spouse’s assets before the agreement is signed, the law presumes that the prenuptial agreement is fair. Without such an agreement , a party to the marriage could expect to have their premarital property assets subject to division in the event of divorce – especially in the event that a party to the marriage did not have their own acquired assets that are legally exempt from being divided upon divorce or dissolution of the marriage with the party’s own spouse.
In the event the marriage terminates, the general rule is that the parties to the marriage are each entitled to an equitable division of what is called their "marital property," which includes property, real or personal, "jointly owned" – that is, property that was acquired during the marriage whether in one name, or both names – with few exceptions.
Exceptions include:
Absent a prenuptial agreement that specifically provides otherwise, parties who enter into a marriage without one should prepare themselves for the greater possibility that they will face sharing in the division of second spouses’ pre-marital assets, as well.