The truth is that divorce rates are too high to overlook. According to recent statistics, the current divorce rate in the US is a colossal 42.6%. WHOA. More specifically;
- 41%-50% of first-time marriages end in divorce
- 60%-67% of second-time marriages end in divorce
- Approximately 74% of third-time marriages end in divorce
What is a prenuptial agreement?
A prenuptial agreement (also termed as a prenup, antenuptial agreement, or premarital agreement) is a contract drawn up between two persons setting out the terms or financial implications for the duration of their marriage or should their marriage end in divorce.
Whilst the concept of discussing the end of your union before it has legally started may seem unromantic and unappealing, many find that a prenuptial agreement is an effective and powerful way to take control of their finances and futures.
If a marriage ends, in lieu of a prenup, then a couple will have to enter divorce law discussions. However, many people are dissatisfied with the way divorce law works and prefer to take control of the situation beforehand, instead of leaving it in the hands of the judicial system should the need arise.
Should you get a prenuptial agreement?
Only you and your spouse can decide if a prenup would work for your relationship and your specific set of circumstances. Of course, they are not mandatory, and the decision is yours.
However, arranging a prenup is deemed highly sensible in the following instances:
- Wealth: If you are much more affluent than your partner then a prenup can ensure that your assets are protected, and that your fiancé / fiancée is aware of the financial implications of marrying you.
- Income: In many states, a prenuptial agreement can be used to limit the amount of alimony you are liable to pay if you earn more than your spouse. You can also choose to waive alimony or spousal support entirely.
- Remarrying: If you are entering into a second (third or fourth…) marriage then your financial situation is often a lot more convoluted than with your first marriage. Maybe you have children from a previous relationship, dependents or previous spousal support obligations, your own home, or significant financial liabilities. Through a prenuptial agreement, you can ensure your assets are protected or distributed as per your wishes when you pass away. This means that neither your current family nor your children from a previous union are left out. Rather, a prenuptial agreement can help ensure your assets are protected for them.
- Debt: If you are marrying someone who is in considerable debt, then a prenup can ensure that you are not liable for these commitments in the event of a divorce. This is especially important for student loans, which are really common these days!
- Business owners: If you own or part-own a business, without a prenuptial agreement, your spouse could end up gaining a share of your company if you divorce, or you could be forced to pay them a percentage based on the value of the business. This can get expensive. A prenup can ensure that your ex does not become an unwanted partner or beneficiary of your business.
- Inheritance: If you have family heirlooms that you want to pass on to your direct descendants or have them remain in your family, then a prenup can ensure this happens. A prenuptial agreement can safeguard your estate plan and prevent your assets from being distributed to places or people against your wishes. Great Grandma’s engagement ring should probably stay in the family.
- Children: If you intend to quit your job to care for your children, then your income will be negatively affected. This includes your future earning potential, leading to the gender wealth gap, which is most prevalent among women. A prenup can ensure that any financial deficit or additional burden of raising your kids will be shared fairly by both you and your spouse.
When should you start thinking about a prenup?
It’s never too early to start thinking about a prenup, or even having those discussions with your loved one after your engagement. Hey, if you can talk about a prenup *before* getting engaged, even better!
Obtaining a prenuptial agreement should be a relatively straightforward affair and can take as little as a few hours with HelloPrenup. However, the discussions you should have prior to signing the contract, especially when it comes to the discussions around whether to get a prenup at all, could take substantially longer.
The governing principles of a marital agreement are that they must be entered into voluntarily by both parties, there must not be any coercion or duress, and there must be a full disclosure on both parts. With this in mind, if you have never broached the subject before, then you should allow at least 2-3 months to have those initial conversations with your betrothed. This will ensure that you both have time to become comfortable with the idea and iron out any issues there may be surrounding the topic. Communication is always key!!!
When should you sign a prenup?
A prenup should always be signed before the marriage takes place. By its very definition, a premarital agreement is a contract agreed to and signed before marriage.
Ideally, the process of getting a prenuptial contract should be started ASAP and signed in the region of 1-3 months before your nuptials. Again, the sooner the better.
There is no set timeline for when your contract should be signed but the rule-of-thumb is at a ‘reasonably’ early point prior to the wedding. You should also be aware that the terms of validity greatly vary depending on your state. Some states, like Texas, have no minimum requirement. Read more about Texas prenup law here.
For example, in California, there must be 7 days between the parties being presented with the contract and the date of signature. This requirement is enforced to ensure both parties have enough time to consider legal representation should they want it.
Unfortunately, some couples fail to start the process until immediately before the wedding, meaning that the contract is signed either the day before (or even the day of) the wedding. This is not a great idea for your prenup, but also not a great idea for your marriage. In these instances, there can be legal implications if you try to enforce the agreement in the future, and it becomes more likely that the agreement will be disputed or contested.
For example, if you sign the contract too close to the marriage, the courts may question whether one party was coerced or pressured into signing the agreement.
The issues with signing an agreement too far in advance of the marriage could include:
- A dispute that either (or both) parties forgot what was in the agreement or that they even forgot they signed one before the marriage took place
- A change in life circumstances between the couple signing the document and the marriage taking place could render the prenup inaccurate, unfair, or erroneous.
Timing is everything!
Timing Is Key
Timing is vitally important when entering a prenup. As already discussed, coming to a mutual agreement about the terms and conditions of the contract can sometimes take several weeks or even months. You may choose to sign your prenup a month before the wedding, one week beforehand, or even the night before. There are generally no set rules or date constraints, but last-minute agreements are usually not a great idea.
In the California case of Hill v. Dittmer (2001), the prenuptial agreement was contested, with one of the grounds being that the contract was signed on the day of the wedding. The delays were caused, in part, by a clerical error however, the courts ruled that due to Hill’s own business acumen, her awareness of earlier drafts of the contract, and her access to counsel, they would not dismiss the agreement as invalid on this basis.
In the case of the Marriage of Bonds (2000), Susann Margreth Bonds disputed the validity of the prenuptial agreement which was signed the day prior to the wedding. The couple was married from 1988 until 1994 when Barry Bonds petitioned for a legal separation.
Susann testified that her English language skills in 1987 and 1988 were limited, as English was her second language. She stated that, out of pride, she often did not disclose to her spouse that she frequently could not understand him. She also claimed that they never discussed money or property during the courtship prior to their wedding. Susann stated that Barry informed her on the evening before the contract was signed that they would be visiting his lawyer on the following day. It was during this visit where she learned that her fiancé would not marry her unless she committed to the prenuptial agreement. Susann reiterated that she did not fully understand the agreement due to her limited capacity for English.
The outcome of the trial concluded based on the credibility of the witness. The witness revealed that Susann had entered the contract voluntarily, and despite only knowing about and signing the prenuptial agreement the day before the wedding, she did so without coercion, pressure, or undue influence. Moreover, it was determined that Susann was an intelligent woman, and despite English not being her native language, she was able to understand the terms of the agreement and the effect the contract would have on her in the event of a divorce.
The court also concluded that the wedding was a small, impromptu, family affair that could have been easily postponed if she opted against signing the contract. Doing so would have caused her minimal embarrassment or financial distress. Read more about the Bonds case here.
It is important to sign your contract within a reasonable timeframe. A prenup is supposed to help clarify and consolidate any issues for a couple before they marry. Signing off late and leaving your prenup to the last minute only serves to muddy the waters and leave you open to a potential dispute should you divorce.
Can I sign a premarital agreement after the wedding?
Unfortunately, not. A premarital agreement must be signed by both parties before the wedding takes place. There may be a variety of reasons you were unable to finish your prenup, or you simply chose not to complete the negotiations, then don’t worry – all is not lost. You may be thinking you could just arrange for a postnuptial agreement. But, postnups can be tricky.
Some of the popular reasons for a postnup include:
- When a couple is facing extreme difficulties and feel that they are unable to continue their marriage without having a detailed financial agreement. Oftentimes, this agreement is used as a way to save the marriage.
- When a couple is starting a joint venture and want to secure their positions, equity, investments
- When a couple begins or joins a business partnership and they want to ensure the lines are clear between their business and home life
- When one party resigns from their job to take care of the children
- Tax planning
- Wealth planning
A postnup could provide some form of protection against divorce but they are less widely accepted in the US than prenups are. Postnups are not enforceable in all states, because they are inherently more complex than prenups.Therefore, where possible you should push for a prenup instead of a postnup. A prenup has a much better chance of being upheld if ever needed in the future.
Some people believe that negotiating prenuptial agreements is a pointless and stress-inducing exercise, where the very act of contemplating divorce can doom a marriage from the start. Many couples favor the idea of a postnup simply because they would rather shy away from difficult discussions about the division of assets before their big joyous day. Therefore, they anticipate that negotiations of this postnuptial agreement might feel less awkward once they have settled into their newlywed bliss. Right? Wrong.
However, some of the cons associated with a postnup include:
- Opting for a postnup could increase the anxiety that you are feeling that the marriage is not working or likely to last
- One of you could decide that you just aren’t interested in doing the postnup- and then there isn’t a lot that can be done, because you are already married.
- Signing a postnup may enforce or necessitate a lifestyle change for the couple
- Postnuptial agreements are subject to the judge’s opinion and discretion, and the validity determined by that state’s statute or caselaw. It is no secret that postnups are enforced far less than prenups.
Sadly, not all marriages have that happily-ever-after, fairytale ending. However, by securing a premarital contract before getting married, you can circumvent a lot of conflict, unnecessary upset, and escalating legal costs.
If you would like more information about starting a prenuptial agreement through HelloPrenup do not hesitate to contact us at hello@helloprenup for more information. 🙂
Julia Rodgers is HelloPrenup’s CEO and Co-Founder. She is a Massachusetts family law attorney and true believer in the value of prenuptial agreements. HelloPrenup was created with the goal of automating the prenup process, making it more collaborative, time efficient and cost effective. Julia believes that a healthy marriage is one in which couples can openly communicate about finances and life goals. You can read more about us here Questions? Reach out to Julia directly at [email protected].