Congratulations on tying the knot soon! If you’re here, it probably means you’ve made the wise decision to explore a prenuptial agreement—fantastic choice! We applaud your decision (are you surprised?). Now, as you gear up for your meeting with a prenup lawyer, you might find yourself a bit unsure about where to start. Fret not; we’re here to help. We’ve compiled a list of ten essential questions to ask in your first consultation with your prenup lawyer to ensure you’re well-prepared for the discussion.
1. What do you charge?
First and foremost, if you don’t know already, you’ll want to understand how much your prenup attorney will charge. Do they utilize a flat fee or hourly fee structure? If it’s an hourly fee structure, is there a retainer they want you to put down? A retainer is a fee paid upfront to secure the services of a lawyer. The lawyer will then bill the hours worked on your prenup against the retainer you paid them. If the money runs out, you might need to add more.
2. What is the timeline for completion?
Another question to ask is how long everything will take. When can you expect the prenup to be signed by all parties? This is important for a few reasons. One, because some states require certain deadlines for when you can have a prenup finished before your wedding day. For example, in California, there is something known as the 7-day rule, which requires you to have your prenup finished at least seven full calendar days before the wedding. Another reason you should understand the timeline is for your own personal timeline. It is good to understand how long this will take, how many attorney appointments you’ll need, and what to expect.
3. How does the process work, from start to finish?
Understanding the ins and outs of the entire process, from square one to the finish line, is undeniably important. Let’s break it down a bit. First off, you may want to understand how much info they are looking to gather from you. It’s a good idea to get a handle on that so you know what to prepare (more on that next). Don’t forget about financial disclosure. Sharing financial info with your spouse is a must–but how does it work? Then, understand what you can expect in terms of drafting the agreement. How long does that take for the lawyer? What does the final review process look like? How will they explain it to you? Then, there’s the whole negotiation dance. What are negotiations like? Will you need to be present for them, etc.? Finally, you’ll need to seal the deal–sign it and get it notarized. Understanding this entire process so there are no surprises is crucial.
4. What information or documents do you need from me?
This one is very important! Your prenup lawyer is going to request certain documents from you, and it’s critical to provide those to them. Things like financial statements–loans, credit cards, bank accounts, deeds to property, trust documents, etc.- are all fair game. Why? Well, there’s a part of the prenup process known as financial disclosure, which requires both parties to disclose ALL of their finances to one another. This means writing down the values of your accounts, assets, debt, future inheritances, and income. Sometimes, it includes attaching the statements to the prenup itself (this is known as document exchange). For example, if you have a business, you may have no idea what documents you’ll need for that, so asking your lawyer about this is a great idea. In short, understanding what specific documents you’ll need to produce is very important to the prenup process.
5. Based on my situation, what do you recommend I put in my prenup from your experience?
Not every prenup is created equal. Prenups are tailored to each individual and couple to make sense for their situation. What makes sense for you may not make sense for your neighbors. So, after you tell them you and your partner’s financial background and your goals, your lawyer will likely have some recommendations for you. For example, let’s say Joe and Jane are getting married. Joe is the breadwinner, and Jane is planning to be a stay-at-home Mom. Joe makes significantly more money than Jane, and Jane is wondering what to put in her prenup. A lawyer will likely recommend vastly different clauses for Jane and Joe. Jane’s lawyer may suggest adding in a wealth equalization clause to require Joe to pay her a lump sum upon divorce; they’ll also likely recommend keeping alimony in and allowing for her to remain in the marital home upon separation. On the other hand, Joe’s lawyer may recommend keeping certain assets separate and may suggest limiting alimony. As you can see, what makes sense for one person is completely different from the next, so make sure to ask your prenup lawyer what they recommend for you.
6. What happens if my partner and I disagree on terms to put in the prenup?
You may be wondering how the whole process works if you two can’t agree on things. For example, what if one person wants alimony, but the other person wants to waive alimony? It’s a valid question! This is where skilled negotiation comes into play, and experienced prenup attorneys can utilize their problem-solving and mediation skills to help the couple reach an agreement. Don’t worry, though; this doesn’t have to be as hostile as the movies make negotiations seem. However, it will involve some compromise on both ends. Asking your lawyer, in their experience, how negotiations work and what to expect is a great way to get a good handle on this potential scenario.
7. Are there any legal limitations to a prenup in my state?
Understanding what you can and can’t do with your prenup is another great question to ask. For example, many people think that they can include child custody and child support matters freely in their prenup. That’s not true! Virtually all states (with a few exceptions) do not allow these types of topics to go into prenups. You may want to understand the law better in this area if that’s you. On top of that, some states and some attorneys do not do certain clauses. Some controversial topics, such as no-cheating clauses and weight gain clauses, vary from state to state and even lawyer to lawyer. Some lawyers refuse to sign off on certain clauses, so make sure you understand what your lawyer is willing and able to do.
8. What happens if I decide not to get a prenup?
It may be pertinent to your situation to understand what happens without the prenup. Remember, everyone already has a “default prenup,”–a.k.a. the divorce laws in your state. Every state has different laws, so what goes down in your state regarding separation, divorce, and/or death may differ from your neighboring state. And understanding the default laws that apply when you don’t have a prenup may be important to deciding what to put into your agreement.
9. Can our prenup be revised or revoked in the future if we change our minds?
So, what happens if, 5, 10, or 15 years down the road, you want to get rid of the agreement? Or maybe circumstances change so much (you become the next Jeff Bezos) and you want to make some changes? Well, for starters, both people have to be in sync, but if you both agree that you want to change or get rid of your prenup, you’ll need to consult with a lawyer. This is another state-dependent question that a prenup lawyer licensed in your state can help you out with. However, most states do allow for amendments and revocations to prenups; there just may be slightly elevated requirements than those of an original prenup–such as requiring an attorney signature, witnesses, or notarization.
10. How do I enforce my prenup if I ever need to use it one day?
So… how does one “invoke” their prenup if the need arises someday? Well, the answer to that may look different depending on your state, your situation, and how the divorce plays out. However, your prenup lawyer can walk you through what to expect if you ever need to do this. Keep in mind your prenup lawyer is not your divorce lawyer. You are not retaining a divorce lawyer when you are hiring a prenup lawyer. However, your prenup lawyer will still be knowledgeable about what happens in a divorce.
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: [email protected]