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General · May 8, 2021

What is Prenuptial Agreement, What Are The Myths and Facts?

As more and more couples are face divorce and find the resulting outcome often not at all that a party had felt fair, there has been an upsurge in the use of prenuptial agreements. While the idea of planning ahead for such things as divisions of marital property, alimony, retirement incomes, and business ownership seems unromantic, it is a practical way to ensure the parties receive what they want should a divorce occur. For couples who are older or marrying for the second or more times, a prenuptial agreement is a wise choice. Too, couples who are bringing into a marriage financial outcomes such as a settlement from an insurance claim which will not be decided until after the marriage will find a prenuptial agreement a way to protect who receives the settlement, so it does not become a marital asset. There are several facts and myths associated with a prenuptial agreement.

Facts:

  • The prenuptial agreement must be in writing. The court will accept no other form of a prenuptial agreement. Emails and text messages are not acceptable.
  • Both parties must sign the agreement.
  • The agreement must be witnessed and notarized.
  • The division of already owned assets can be decided as well as the paying of already existing debts.
  • Neither party must coerce or pressure the other party into signing the agreement.
  • Parties who have professional legal help, such as an attorney, must do so on an equal basis. One party who has the financial ability to hire a high-end attorney cannot do so unless the other party can do so as well. Sometimes the party who is better off financially will help pay the other party’s legal fees to ensure equal representation.
  • Should a party not speak English, an interpreter must be present at the signing to read and explain the entire document and answer questions.
  • An in-depth financial disclosure by both parties must accompany the prenuptial agreement.
  • If any of the above are missing or later proved to be false or omitted, such as a false financial disclosure, the prenuptial agreement will become null and void.

Myths:

  • All types of alimony can be included in a prenuptial agreement. No, temporary alimony cannot be included.
  • Child support and a parenting plan can be included in a prenuptial agreement. Arrangements for minor children must be made during the separation or divorce proceedings and finalized by the judge.
  • Attorney fees can be predetermined. No, who pays attorney fees cannot be included in a prenuptial agreement.
  • You have to have an attorney to create a prenuptial agreement. No, a couple can create their own prenuptial agreement, but it is wise to have at least a Family Law attorney go over the agreement to make sure it will stand up in court if needed.
  • There is no way to end the prenuptial agreement after marriage. Following the marriage, if both parties want to dissolve the prenuptial agreement, this can be done with both parties agreeing and signing the said document, which is to be witnessed and notarized.

Be sure to take careful consideration before making and signing a prenuptial agreement. The court is not required to accept an agreement that is in any way missing a required step.