A prenuptial is a binding legal contract and agreement between two persons who are planning on getting married. It must be negotiated and executed prior to the marriage. If the parties cannot resolve any differences and are unable to enter into an agreement, then they have two choices. One is to marry without a prenuptial or two would be to call off the wedding. There are several tips to consider when preparing the document. There is an excellent article in Kiplinger which discusses some of the same tips mentioned in this article.
1. Do Not Wait Until The Last Minute
Many wedding dates are set months in advance so locations can be reserved, save the date notices can be mailed, and ample time is allowed to make all the arrangements. A prenuptial should be approached in the same way. It is not fair to either party to wait until one week before the wedding to start negotiating the agreement. A good prenuptial takes plenty of thought and quite a bit or preparation. That takes time.
2. Hire Separate Attorneys
This may seem like an unnecessary expense. If you were buying a business, would you use the seller’s attorney. Of course you would not. Separate attorneys give the agreement the appearance and reality of a fairly negotiated document. Both sides have independent legal advice and no one can claim after the marriage that they did not understand the legal ramifications of signing the contract.
3. Disclose, Disclose, Disclose
Do not hide that bankruptcy two years before you met your future spouse. Place everything on the table. It will probably come up eventually so before the wedding is better than after the wedding.
4. Do Not Press
Both parties need to refrain from say things like “If you do not agree with what I want the marriage is off” or language to the effect. When there is a major disagreement the tendency is to make a threat. It just might be that the differences between the parties is proof that they should not get married. If you think negotiating a prenuptial is hard when you have total freedom, wait until you try to agree on a separation agreement after 10 years of marriage. This point goes back to the first point. Start working on the agreement early so you have plenty of time to work through your differences and reach an agreement.
5. Let The Attorneys Handle The Legal Language
There are contract clauses that violate public policy. In other words, they will not be enforced by a court. Lawyers know what they are and will advise you not to put them in the document. The attorneys will also put a clause in the prenuptial which will protect the validity of the agreement in the event one clause is not enforceable. Sometimes courts add restrictions that an attorney could not have predicted. An example is a clause waiving child support from the non-custodial parent. There are just certain rights a court will not let you sign away. Public policy requires people to support their minor children.
6. Remember That The Other Party Is Going To Be Your Spouse
Do not say anything while the agreement is being written that will come back to haunt you years later. Do not put anything in the prenuptial that you would not want to be made public. If one party has to file a lawsuit to enforce the agreement, it will become a public record that anyone could read.
7. No Threats
This is similar to no pressure but if the parties have reached an impasse on one or more issues, someone might think a threat will get things going. Remember tip 6. Remember that the lawyers will place standard language that the agreement is the result of fair negotiations and neither party has been forced to sign the document. It will also state that the agreement was signed voluntarily and without force or duress.
8. Think About Situations Not Previously Considered
Think outside the box. Imagine problems that could come up and address them in the document. For an excellent article about financial considerations, read this article in Forbes. It will give anyone considering marriage a good idea of the issues involved in a prenuptial.