by Jonathan C. Noble, Esq.
No, this isn’t a bar exam question. It is real life. How many adults do you know who have lived in the same state their entire life? Probably not too many. People are more mobile today than ever. A properly drafted and properly executed prenuptial agreement will help answer what state law will control in the event the prenup needs to be enforced. Since we live in a mobile society, and state laws vary widely, this issue could “make-or-break” the enforceability of your document.
Prenuptial Agreements are carefully crafted documents, tailored to suit your specific situation and your specific needs and goals.
I love when people inquire about prenuptial agreements. It shows they are taking a cautiously optimistic, yet pragmatic view regarding how life can and does change. People change over time. Circumstances change. Laws change. In the unfortunate event of divorce (or death), a properly drafted and executed prenuptial agreement can make the divorce process easier, more efficient, and help ensure you do not lose all that you have amassed. Properly drafted, and executed, a prenup is one very useful document.
Prenups make sense. When properly written and executed, prenups save time and money. They can help you exit from a non-functioning marriage without paying a king’s ransom to your lawyer and/or being potentially victimized by a non-cooperative, or unrealistic, soon-to-be ex-spouse. Prenups can help protect assets that you have earmarked for your children from a prior marriage. Prenups can help protect your assets from being depleted by the well meaning, but often slow churning, and over-burdened court system. As a very general rule, the less time you spend in court fighting over divorce related issues, the better off you will be at the end of the divorce process.
I believe the best legal advice is forward thinking, with the aim to keep you out of court as much as possible. A well drafted and properly executed prenup should be part of a pragmatic, forward thinking strategy.
Prenuptial agreements are never standard or “boilerplate” agreements.
No two prenuptial agreements are exactly alike. Everyone has different assets, different goals, different financial histories and different family histories. While most prenuptial agreements are put in place in the event of divorce or death, no two marriages share an identical set of facts and circumstances. You should never take a prenuptial agreement written for someone else and simply substitute your own information.
Like all contracts, the parties must enter into a prenuptial agreement voluntarily. Prenups require full disclosure. No surprises.
If you are thinking about springing a prenuptial agreement on your significant other during the rehearsal dinner the night before the wedding, you can forget it. In most, if not all jurisdictions, a prenuptial agreement will not be enforced if the party seeking to have the prenup set aside can prove they were not given adequate time and a reasonable opportunity to review the document with independent counsel of their own choosing. Presenting a prenup for the first time and demanding it be signed a few days prior to a wedding is inviting trouble down the road. Some jurisdictions require a minimum amount of time for the parties to retain separate counsel, to examine, and to sign a prenup. The earlier you handle discussing and putting a prenup in place, normally the better. Getting a prenuptial agreement properly wrapped up before the wedding invitations are mailed is one suggestion that deserves serious consideration.
If you are planning to marry and would like to learn more about how a prenuptial agreement can help protect you, please feel free to contact me via email at firstname.lastname@example.org or call my office at 610 256 4843 to set up an initial consultation.