Considering a Prenuptual Agreement?

Have you ever heard about the bride who is given a prenuptial agreement moments before walking down the aisle to get married?  Many people believe that the agreement given to her moments before she takes her vows of marriage would hold up in Court.  Me, not so much.

A prenuptial agreement which is also referred to as an antenuptial agreement is an agreement between two parties contemplating marriage that alters or confirms the legal rights and obligations they would otherwise have under the laws that govern marriage that end in either divorce or even in death.  These agreements are charged with controversy as to their enforceability.  This area of law is complex area and encompasses family law and estate planning.  All fifty states recognize prenuptial agreements in one way or another.  There are technical requirements of the agreement.  They must be in writing and they must be signed by both parties.  Generally, parties to a prenuptial agreement must have had the opportunity to consult with legal counsel.  I believe this is super important and one of the pillars of enforceability.  The more time the parties negotiate the terms with their counsel the greater likelihood the agreement will hold up.  There must be full financial disclosure and the agreement must be signed before the marriage.  The closer the agreement is signed before the marriage the more likely it is to be challenged. Personally, I will not take on a matter unless the parties are at least four months from marriage as I recognize there will be time spent to negotiate, draft and review a prenuptial agreement and signing one on the eve of marriage makes it a pretty weak agreement.  Obviously, there must be a marriage subsequent to the execution of the agreement.  There are some public policy limits, such as attempting to limit the number of children born in the marriage.  Also, provisions in the agreement regarding child custody are not usually enforceable.  There are also fairness standards. What constitutes fairness depends on the circumstances of the agreement and are called Button standards, after the case Button v. Button.  The standards are as follows: objectives of the parties, economic circumstances of the parties, the property owned by each party before the marriage, the existence of other family relationships and obligations, each party’s income and earning capacity, anticipated contributions of each party to the marriage, the health of the parties, education and professional goals of the parties, including expectations that one party will contribute as homemaker and parent.

Many times the questions I ask before I take on a prenuptial matter are and if the answer is not “yes” I am unlikely to take on the case.

  • Is there enough time to negotiate, draft, review and sign the agreement so that no one is unduly pressured?
  • I require both parties to hire attorneys, so has the other party hired an attorney?
  • Are the parties willing to bring in their accountant to review their taxes and finances?
  • Are the parties willing to use a valuation expert to value real estate and businesses?

Many times the agreement covers not only divorce but death.  Usually, this is where family law and estate planning attorneys must work together.