Ask Attorney Jennifer B.: Drafting And Enforcing Prenups

With the holidays come engagements, leading to wedding plans, and, for some couples, the possibility of a prenuptial agreement. Prenuptial agreements are beneficial in that they provide protection if the marriage should end or one spouse dies. They are challenging to create, however, because they are negotiated at a time when couples are focused on building a life together, not ending their relationship. They also ask couples to predict the future, including a future without each other, when they would rather be thinking about their upcoming wedding.

As attorneys, we have a difficult task to strike the right balance when drafting and negotiating a prenup. We must advise clients about potential future risks without undermining the relationship before any vows are even exchanged. Before drafting a prenup, one must be well informed about the laws governing prenuptial agreements in the applicable jurisdiction. Some states require a waiting period between execution of the agreement and the wedding, making it essential for clients to begin the process early. Regardless of jurisdiction, prenuptial agreements should never be rushed. As a general rule, they should be finalized well before the wedding date so as not to interfere with final preparations.

Many couples underestimate how long these agreements take to draft and negotiate. They cannot be meaningfully completed in a matter of days or even a few weeks. Both parties need adequate time to review the terms, consider the implications, and reach reasonable compromises. Full and fair disclosure is also critical. Each party must be informed of the other's assets and liabilities. In many jurisdictions, a prenuptial agreement may be unenforceable if adequate disclosure is lacking. One of the positives about negotiating a prenuptial agreement is that couples are forced to discuss finances, something they may never do prior to the wedding if there were no prenup.

Attorneys should also properly advise their clients who insist on the inclusion of lifestyle clauses in their prenuptial agreement, such as provisions addressing weight, appearance, or the frequency of sexual relations. These clauses raise enforceability concerns, as there is no mechanism to monitor compliance. In many cases, such provisions may do nothing other than derail and distract from consideration of legitimate issues in the prenup. Once a prenuptial agreement is signed, it is typically set aside and only revisited in the event of divorce or death.

Clients should be cautioned against signing an agreement lightly with the assumption that it will not be enforced or can easily be changed later. Courts often enforce prenuptial agreements as written, even when the result is unfavorable to one party. In many jurisdictions, courts will not review the fairness of the agreement, and modification generally requires the consent of both parties, which can be difficult to obtain after the marriage occurs.

For that reason, it is far easier to negotiate acceptable terms at the outset than to rely on the possibility of making future changes. Similarly, provisions requiring a prenuptial agreement to expire after a set number of years should not be included, as marital breakdowns often occur after such expiration dates, defeating the purpose of the agreement altogether. A well-drafted prenuptial agreement that complies with applicable law and avoids overreaching can be enforceable and can save both parties significant time, expense, and emotional distress if the unforeseen occurs.

Originally published by Martindale-Avvo.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.