Welcome to “The First State!” If you plan to reside in Delaware with your boo, you’ve picked a great state to get started in as newlyweds. From the peach blossoms to the beautiful views of the Eastern Seaboard, it’s no “Small Wonder” why Thomas Jefferson once called Delaware a “jewel” among states. But you may still wonder about how to get started on a prenup in Delaware. Well, sit back and relax while we give you the scoop on how to navigate the prenup process from A to Z in Delaware.
Is a prenup worth it?
We’re (more than) a little biased here, but yes! Are you willing to let a court decide how your assets and debts should be divided during a divorce, or would you prefer to define those terms yourself? There’s no right or wrong answer to this question, but it is something you need to consider before you say, “I do.”
Delaware is an equitable distribution state. Without a prenup, a Delaware court will divide your property based on what is fair under the circumstances. Although fair does not always mean equal (i.e., 50/50), the court has the discretion to decide what fair means on a case-by-case basis. Delaware courts can assess several factors when making property division decisions, including the relative age, health, and income of the spouses, the length of the marriage, and each spouse’s contributions to the marriage. Del. Code tit. 13 § 1513 has the complete list of factors that a Delaware court can consider in a divorce.
Do you need a lawyer to get a prenup in Delaware?
No…with an asterisk. There is no legal requirement in Delaware to have legal representation for your prenup to be valid and enforceable. However, having legal representation can show the court that a spouse voluntarily entered into a prenup if that spouse claims otherwise and tries to contest the prenup at the time of divorce. Even if only one spouse has an attorney at the time of prenup, that alone will not make your prenup enforceable. Let’s take a look at some Delaware case law to see this in action.
In an unreported 2022 case (T.A. v. C.A., No. 20-16002, 2022 WL 2256331 (Del. Fam. Ct. Feb. 10, 2022)), a Delaware Family Court upheld a prenup where the parties signed 10 days before the wedding, and only the Husband was represented by legal counsel. At the time of divorce, the Wife argued that she was not included in the drafting and negotiation process and felt pressured to sign due to the impending wedding date. However, the Husband argued that the Wife had the choice to sign (or not sign) the agreement. The Wife also testified that she signed the agreement out of love for the Husband. Based on the circumstances, the court determined that the Wife voluntarily signed the prenup and enforced the agreement. The bottom line? The court enforced a prenup that was signed 10 days before the wedding, and where only one spouse was represented by legal counsel.
In another unreported 2019 Delaware family law case, the court enforced a prenup where neither spouse had legal representation. The court examined whether the wife’s lack of legal representation meant she did not voluntarily enter into the agreement. The Husband argued that the Wife repeatedly stated that she wasn’t interested in his assets and had no intention of requesting anything. The Wife confirmed this as well. Consequently, the court found the Husband’s testimony credible and reasoned that the Wife did not seek legal representation because she had no interest in the Husband’s assets. Since the Husband was also unrepresented at the time of prenup and the parties had the opportunity to have the agreement reviewed before signing, the court found that the Wife voluntarily signed the prenup (L.W. v. J.W., No. CN13-01397, 2014 WL 4203848, at *8 (Del. Fam. Ct. 2014)).
How much does it cost to write up a prenup in Delaware?
The cost of a prenup will depend on whether you use an online platform (like us) or retain a local Delaware attorney (or, in some cases, both).
In Delaware, the average hourly rate for a family law attorney is $387 per hour. Let’s do some quick math here. The time needed to complete a prenup will vary based on the client and the presenting issues. It could take your attorney a total of 12 hours to complete a simple prenup. This could include 2 hours of consultation time with the attorney, 4 hours of negotiations with your fiancé’s attorney, 4 hours to draft the agreement, and 2 hours to review and make final revisions to the agreement. This would add up to a bill in the total amount of $4,644 for a Delaware prenup for one spouse. And if you’re thinking about using just one attorney to represent you both, think again. Your fiancé will have to hire their own separate attorney if they want representation.
With our platform, you can create a simple prenup for $599 per couple with the option to add attorney services at a discounted flat rate. No fuss, no muss.
How do you bring up a prenuptial agreement?
If you’re still wondering about what steps you need to take to create a prenup in Delaware, take a look at the roadmap we’ve created for you below:
Step 1: Have a Chat With Your Spouse-To-Be. You can introduce the idea of a prenup to your fiancé by discussing why you want it and what you think it should include. For some ideas about what you can put in a Delaware prenup, check out Del. Code tit. 13 § 323. Your prenup can cover just about anything within reason, including property rights, how spousal support (a.k.a. “alimony”) will be handled, and anything else as long as it does not violate Delaware law or public policy (i.e., no child support or custody arrangements).
Step 2: Pick a Side – Online Platform vs. Local Attorney (Or Both). Whichever route you choose, your prenup has to be in writing in Delaware (Del. Code tit. 13 § 322). You can get attorney referrals from friends and family, an online search, or the Delaware State Bar Association. With our platform, you get a one-stop shop. Create a state-compliant prenup and add on optional attorney services if you want to speak with a Delaware attorney about your prenup.
Step 3: Time to Gather Your Financial Information. Delaware requires “fair and reasonable” financial disclosure. This means you’ll need to list the values of all your assets and debts. It’s not enough to just list everything out, even if you include account numbers. You also need to include the corresponding balance. For example, just listing Savings Account ABC without the most recent account balance is not sufficient. You’ll need to be as transparent as possible, as omitting financial information can render your prenup unenforceable (Del. Code tit. 13 § 326).
Step 4: Review, Review, Review. We can’t emphasize this enough. Read through the draft(s) of your prenup to make sure it reflects what you and your fiancé have agreed to. Revise the prenup as needed until you’re both in agreement with the terms. Don’t proceed to the next step until the agreement is in its final form.
Step 5: The Finish Line – Sign and Notarize. Both fiancés must sign the finalized agreement voluntarily (Del. Code tit. 13 § 322). This means that you shouldn’t pressure or coerce your fiancé into signing the prenup as that could render it invalid and unenforceable (Del. Code tit. 13 § 326). While notarization isn’t a Delaware requirement, it’s an easy way to add an extra layer of protection to your agreement. Notarization provides proof that your spouse signed the agreement in the event that they ever try to contest it in the future.
Can you write a prenup yourself in Delaware?
Technically speaking, Delaware law does not prevent you from writing your own prenup. But practically speaking, it’s not recommended. It may be tempting to want to write your own prenup since hiring a lawyer isn’t strictly required in Delaware. However, prenups are highly complex legal documents. If your prenup does not comply with Delaware law, it will not be enforceable. Why take that risk? Saving money by writing your own prenup could cost you way more in the future.
The bottom line on how to get a prenup in Delaware
That’s everything about how to get a prenup in Delaware in a nutshell! Navigating the prenup process in Delaware can be as easy as a day at Rehoboth Beach. If you stick to the essential steps—talking things over with your fiancé, deciding whether to use an online platform or a local attorney (or both), getting your financial documentation, reviewing and revising your draft, and signing and notarizing the final version—you can rest assured that you’re starting your marriage off on the right foot. Remember to reach out to a local Delaware attorney or HelloPrenup to help you set the stage for a secure financial future.
0 Comments