If you are considering entering into a prenuptial agreement (also known as a premarital agreement or a "prenup") before tying the knot, make sure you start early. Too often, couples try to squeeze the prenup process in between picking up the tux and the final teeth bleaching, when they ideally should have met with their attorneys soon after choosing the wedding date. The prenup discussion doesn't get easier if you procrastinate and if you put it off too long, the agreement is vulnerable to being set aside if either party successfully argues they didn't have sufficient time to fully understand the terms or consequences of signing the agreement. Lawyers may charge higher premiums for expedited legal work, so beginning the process earlier will save you money and result in an agreement that is less likely to be deemed unenforceable. Although there is no "magic date" for ensuring the enforceability of the prenup, we recommend that the prenup is executed at least thirty days before the wedding. Make sure to allow plenty of time for the attorneys to draft, review and circulate the document!
Some clients are surprised to learn that one lawyer can't represent both parties in the prenup process. Although it is not required that each party have an attorney, they must each have the opportunity to have independent counsel. Even the most straightforward prenuptial agreement should be drafted by an attorney representing one of the future spouses and ideally, reviewed by a different attorney who represents the other future spouse. The process is designed to ensure that both parties' legal rights are protected and understood. Following this recommendation will increase the chances that the prenuptial agreement is upheld by the court in the event either spouse challenges it in a divorce action in the future.
The ideal prenup will also address each spouse's rights upon death of the other spouse, because even the strongest marriage won't survive death. A prenup will likely designate certain property as "sole and separate" and this designation will control regardless of whether the marriage ends in divorce or death. This means that you need to consider your estate plan along with your prenuptial agreement and be prepared to talk with your attorney about how you intend to dispose of your sole and separate property if death does you part.
Contact us to learn more about estate planning or prenuptial agreements.