BEFORE YOU SIGN A PRENUP, HERE ARE 10 THINGS YOU OUGHT TO CONSIDER
- Before you sign a prenup, the first thing you need to consider is that whatever happens to the marriage, you want the prenup to be enforced by the courts. An enforceable prenup will save you a lot of money and headaches down the road so this should be a focus during the entire period of negotiation.
2. Human nature is what it is and love will not change a thing so before you sign a prenup you want to be sure that, BEFORE signing, both parties have competent legal counsel (separate lawyers not the same lawyer for the two of you);
3. Video tape the signing so that the parties cannot forget years later that they were sober, sane and competent to sign the document, when they signed the document. You would be amazed how people forget that they fully well know exactly what they were getting into and what they were signing when the marriage cracks up.
4. When negotiating the prenup with your significant other and the lawyers, keep in mind that a lot of marriages don’t happen due to what happens during this negotiation so negotiate in a way that is respectful and humane and that preserves the love (whatever that means).
5. If you and your future spouse’s financial resources are very disparate, you need to consider this when you negotiate the prenup and when you sign it because you can’t have something that is too one-sided and that is unreasonable as it could be thrown out.
6. Before you sign a prenup you also want to be sure it is not “boilerplate.” Never sign a boilerplate prenup because every couple and every situation is different. If your lawyer is just filling in blanks from an old prenup, you ought to be skeptical at a minimum and refuse to sign the document.
7. Know the difference between a pre-nup and a post-nup and if you are signing either, have a very clear understanding of their implications as far as your rights. For example, is there full disclosure? In most cases, you want to know that especially with a post nup, all assets have been fully disclosed. A prenup could give you more wiggle room in some jurisdictions to not have a duty to fully disclose but a post nup could be more sensitive. You need good legal advice.
8. If you are marrying someone from a different country or you live in a country that is not your habitual residence and getting married abroad, you also want to know about the difference in the legal structures as far as enforceability of the prenups and as far as what your rights are – including disclosure rights/duties. And what is the “choice of law” going to be in the case of a dispute? Are you going to litigate disputes according the laws of the country where you are? Or the country where you are from? The outcome could be very different.
9. Also, before you sign a prenup, be sure to ask your attorney about any trust and estate planning concerns you have – especially when you have children from other relationships and when you are the monied spouse with financial ties to your “family money.” All of these issues need to be discussed, understood and provided for in the prenup.
10. Does the UPMAA apply in your state? (Uniform Premarital and Marital Agreement Act?) If it does or does not could make a huge difference in the outcome of any disputes. So you need to know the answer to this question up front while you are considering signing a prenup or post nup.