Hiring a Prenup Lawyer
A good lawyer -- well, two lawyers, actually -- will ensure that your prenup fits your needs and stands up well to challenges.
The law considers marriage a contract between two people. Unless the married couple creates a legally binding agreement that states otherwise, the law in the state where parties live will govern property rights. A prenuptial agreement, also called a premarital agreement, or a prenup for short, allows a couple to set the terms of property rights for their marriage.
Reasons to Hire a Lawyer to Make a Prenup
Under state law, each spouse receives automatic property rights unless a legally enforceable agreement states otherwise. For example, spouses share ownership of some property acquired during the marriage and both have the right to manage and control the property. If one spouse dies or the parties divorce, state law dictates the disposition of the property. If the parties wish to divide the property differently, it is necessary to create a prenup. Here are some common reasons for making a prenup:
- Keeping finances separate. Some kinds of property acquired during marriage automatically become part of the community or marital estate. A prenup can define whether an asset is the separate property of one spouse or whether the asset is part of the marital estate.
- Providing for children from prior relationships. A prenup can ensure that the children from previous relationships inherit certain property from a deceased parent.
- Establishing property rights in the event of a divorce. In divorce, state law will determine how to divide certain property acquired during marriage if a prenup does not exist.
- Defining financial responsibilities during marriage. A couple can use a prenup to make financial decisions like whether to open joint accounts or whether an estate plan will include a surviving spouse as a beneficiary.
Why Hire a Lawyer When Making a Prenup
To avoid a court from declaring a prenup invalid, it is advisable to hire two lawyers to represent the interests of both parties. While neither party is required to have legal representation, courts are cautious about enforcing a prenuptial agreement signed by a party that did not have independent legal representation. In this situation, especially if the prenup seems unfair to the party without legal representation, a court may invalidate the prenup.
Drafting a Prenup
Before drafting a prenup with a lawyer, a couple should have a clear understanding of what to include in the agreement. Creating an outline of the terms is an effective way to create a fair agreement. Each party should also fully report their income and assets, which will satisfy the requirement that each party made full disclosure of their finances.
An experienced lawyer has knowledge of the type of terms prohibited from inclusion in a prenup. Although every state has different laws, a prenup typically cannot include:
- Provisions that violate public policy: Courts will not enforce provisions that waive future child support, place limits on future custody or visitation rights, or use financial incentives to promote divorce.
- Provisions that involve nonmonetary matters: A court will not enforce a nonmonetary condition and may even set aside the entire prenup if it includes conditions such as the division of chores or how many children to have.