A prenuptial agreement is a written contract created by two people before they are married. The prenuptial agreement is basically a contract that lists all property and debts each person has, and specifies what each person’s rights will be after the marriage. If the couple has children, these agreements can also provide for how each spouse would like to see property dispersed between them. While prenuptial agreements are often written with divorce in the minds of the spouses, they can also play an important role in property management and distribution in the event one of the spouses dies.
What Makes a Valid Prenuptial Agreement?
In most states a valid prenuptial agreement must have these basic factors:
- Timing – drafted and signed at least 60 days before the wedding
- Detailed Financial Statement – a full disclose by both spouses of all assets, accounts and values, and any valuable personal property
- Independent Counsel – review of the prenuptial agreement by each spouse’s attorney
- Fairness – the prenuptial agreemnent needs to meet the reasonable needs of each party and not be against public policy
- Signing – to satisfy the Statute of Frauds
Why Does a Prenuptial Agreement Have To Be Signed So Early?
The law generally disfavors prenuptial agreements that are rushed or signed under pressure at the last minute. Ideally you should provide a comfortable amount of time to allow for modifications of the prenuptial agreement and avoid the appearance of hurrying your fiancee to sign an unfavorable agreement.
How Should I Create My Detailed Financial Statement?
The easiest way to create a detailed financial statemate is to consult a Certified Public Accountant ("CPA"). A good accountant will know how to best present your assets and create an accurate financial statement. Best of all, it is not critical but a CPA may certify your financial statement as good to provide you with extra protection in case a mistake is made. Have your fiancee provide a financial statement as well, even if you are sure they have no assets. If you don’t know a CPA, have your attorney recommend one in your area.
Can a Prenuptial Agreement Be Changed?
A premarital agreement can be amended after it was created if both parties have agreed to the changes. The modification can be done by:
- Adding amendments to the existing prenuptial agreement
- Invalidating portions of the existing prenuptial agreement
It may be easier to replace a prenuptial agreement with a postnuptial agreement if the prenuptial agreement needs to be changed dramatically. The modifications to the prenuptial agreement must also be in writing and signed by both parties. Anything that has not been touched or modified in the agreement will remain the same and enforceable unless both parties revoke the entire prenuptial agreement.
What Is a “Fair” Prenuptial Agreement?
What comprises a "fair" prenuptial agreement is always up for interpretation, but courts have generally decided that a good prenuptial agreement will provide for the reasonable needs of the dependent spouse, such as rent and food, and accounts for changes in circumstances during the marriage, such as unemployment or an economic disaster.
A good prenuptial agreement should be fair and it should be entered into between two consenting adults who know what they are doing and what is legally involved in the agreement The agreement should be fair when it is signed and entered into, and also fair when it is be enforced, whether in the event of a divorce or death.
What Is a Bad Prenuptial Agreement?
A bad prenuptial agreement is an agreement that is entered into without consent of one adult. The agreement would also be bad if the terms of the agreement were one-sided and unfairly favors one spouse while putting the other spouse at a disadvantage.
Do I Need an Attorney?
Marriage is one of the most significant events in a person’s life. If you need a prenuptial agreement, a family attorney is absolutely necessary in order to best protect your rights and your assets. Don’t be shy in asking your attorney about any questions or concerns that you have.
Your attorney may sign a paper certifying that they believe the prenuptial agreement has been reviewed and that you understand everything in the agreement. This is recommended even if you and your attorney wrote the agreement.