Making the Tough Times a Little Easier Schedule a Free Phone Consultation

Everything You Need to Know About a Prenup

Gene Kirzhner Aug. 8, 2017

A prenup is a stipulation of actions that you will take in events such as divorce or infidelity. This tends to be a document that by people who want to make sure they keep assets such as real estate or property of value use. It may state that in the occurrence of a divorce, whoever enters the marriage with the property will leave with it. Or in the event of infidelity, a part is entitled to an asset. It is a legally binding contract between two people who plan to enter a union and is recognized by the court unless reason can prove that it shouldn’t be. It is very similar to a will, in that it is a document that stipulates actions in the dissolution of a union. Without the direction it provides, the state will decide who gets what.

Do I Need a Prenup?

That depends on whether you have items you are concerned about keeping. There has been a discussion that asking for a prenuptial agreement sets a bad idea into motion, early in the marriage. It may show that you don’t have faith in the union or don’t take it seriously. However, if you can discuss with your partner why this is necessary, it may be helpful. Nobody ever needs a prenup, until it’s too late to get one. Something to consider is what you are trying to protect, and its value.

If you have a lot of real estate or a family estate that you are trying to protect, it makes sense. But, for Joe Shmoe; it doesn’t make a lot of sense. In a lot of those cases, the court or a mediator will quickly assist in determining who gets what. A prenup is similar to a will for your union. Once the dissolution of the marriage is initiated, the prenup will be enacted. Without it, the state’s laws will decide who gets what and how much of it. It is very much like what happens when a loved one passes. The will dictates who gets what, and without it, the state does.

If you have children, there is an imbalance of finances or debt, you own businesses or need a confidentiality clause; this may be something to consider. All of these will make a cleaner break of a divorce and ease the division of responsibilities. The prenup can ensure you retain your property in the event of a divorce or ensure you don’t retain your partner’s debt. It can also protect your business from becoming a point of debate in the divorce proceedings. There is more information about this here. These are also discussions you will want to have with your attorney, for a more informed decision.

Does a Prenup Always Work?

Not always. There are ways for you to challenge a prenup. If the court finds sufficient evidence that the prenup is invalid, the court or a mediator will decide who gets what. You may challenge a prenuptial agreement if the person who signed was found to have diminished mental capacity or been coerced into signing the document. The information stated must be accurate. If there is false information about assets or income, the contract could be null in void. It must also be unbiased. If one person benefits from the prenup more than the other, the judge will likely throw it out.

The court will give you time to read the document and have counsel review it before it is signed. The attorney checking the agreement must also be an independent person, who is not representing the other party. This ensures that both sides receive the same level of attention. Any violation of a law will also be thrown out. In most cases, it is only that clause that would be stricken, and the court will follow the rest of the prenup. However, that is dependent on how much of it is invalid and whether the entire thing should be thrown out.

How Can an Attorney Help?

The best thing to do first is to consult an attorney who has experience with prenups. You’ll have plenty of questions, and they can give you the best answers.

Asking an attorney about whether or not you should have a prenup ensures that you are considering all of the important points before you pay to have it drafted. If you don’t need one, there is no point in going through the time, effort and money it would take. Also, they might tell you that a prenup would be a bad idea. You’ll want to ask about specific assets, estates or property that you are concerned about. It is best to have a list of all property and any questions you may have. You’ll want to start here. It’s a good place to start your research and find an attorney who can help.