The Pros and Cons of Prenups

Marriage is a beautiful and romantic experience where two people come together, but it is also, functionally, a legal agreement. No one should enter marriage lightly, and though it might “ruin the mood,” both parties should prepare for the worst-case scenario.

This article will explain what a prenuptial agreement is, what it can and cannot do for a couple when someone needs a prenup and the advantages and disadvantages of entering it. This information comes from the office of a noted divorce mediation lawyer in Philadelphia.

What is a Prenup?

A prenuptial agreement, commonly called a “prenup,” is a contract between two people engaged to be married in which they agree that certain assets will not be considered marital property in case of divorce. A prenup protects the assets of one spouse, or both spouses, from the property settlement claims of the other should they divorce. Prenups can also set forth what happens to assets should one spouse die.

Why Would You Need a Prenup?

People who own a business or have substantial assets, such as a family legacy, that they wish to protect for their family members or loved ones, ask their partners for a prenup. These people hope to protect that business or those assets from property settlement claims that could arise from divorce.

The Advantages of Having a Prenup

Assets are considered outside the marital property, so one spouse can preserve them for their business partner or partners, children or grandchildren, grandchildren from a previous marriage, or whomever they wish.

A prenup can also streamline the process if a couple divorces, because they can establish in advance what is and is not marital property.

The Disadvantages of Having a Prenup

Just asking your partner for a prenup may create distrust in your relationship. There is nothing less romantic than contemplating your eventual divorce.

The Form of a Prenuptial Agreement Must Comply with State Law

Also, prenups are not always enforceable. For example, the necessary binding language may be omitted if a prenup is not prepared by a professional knowledgeable in state law governing prenuptial agreements. The form of the agreement must comply with state law and properly signed by both parties in order to be enforceable.

Both Parties Must Enter a Prenuptial Agreement Voluntarily

If the agreement was not entered into voluntarily, it will be set aside by the court. For example, suppose one spouse hid assets from the other or purposefully undervalued assets. In that case, the other can claim that they could not voluntarily agree to the property division outlined in the prenup due to this deception.

Duress or lack of capacity of one spouse may invalidate a prenup. For example, if one spouse can show that they felt undue pressure to sign the prenup, whether that pressure be a physical, emotional, or financial threat, the court will invalidate the prenup. If one spouse signed without consulting with their independent attorney, the court might invalidate the prenup.

The Prenuptial Agreement Must Be Fair

Problems may arise with the substance of the agreement that could result in invalidation. Courts regularly invalidate prenups that are unfair towards one party or otherwise unconscionable. For example, if the agreement imposes undue financial hardship on one spouse, eliminates or unfairly limits child custody for one spouse, or imposes marital conditions regarding a spouse’s appearance, sexual acts, or other private behaviors, the agreement is unconscionable and will be invalidated.

What to Do if You Want a Prenup

While it is not the most romantic subject to discuss, you must sit down and tell your partner the reason or reasons you want to enter into a prenup. Those reasons have nothing to do with how you value your relationship with your partner or your expectations about the success of the marriage. Instead, your need for a prenup arises from the needs of the people you seek to protect by shielding your business or certain assets from potential property settlement claims.

Framing the discussion around what you seek to do for your business partners, your children from previous relationships, or your special needs sibling who needs continuing care, helps keep emotions in check. Write down exactly what you want to keep out of marital property and determine a true current value so your partner can make an informed decision.

Be sure to have an attorney help you prepare the prenup. Again, your partner should have their own attorney to ensure that they are informed about the decision they are making in entering into the prenup.

What to Do If Your Partner Wants a Prenup

Don’t panic! Don’t take it personally! First, know that prenups are common, and if your partner wants one, you should know the reasons. If the agreement is reasonable, there is no excuse to be upset or to outright refuse. Does your partner have business partners, children or grandchildren from previous relationships, aging parents, or a special-needs sibling whom they need to provide for? Shielding assets from property settlement claims in a possible future divorce protects these people.

Think about it – you may have assets you want to include in the prenup as well. Many couples have equal or comparable wealth and jointly enter into prenups that provide for both of their assets.

What to Do if You Have a Prenup and Are Divorcing

If you have doubts about the validity of your prenup, seek legal advice. Your lawyer will review the document and tell you if it is enforceable or a possibility a court will invalidate it.

Finally, if discussing a prenup is causing anxiety, mistrust, anger, resentment, or other problems in your relationship, consider seeking professional help. In other words, it’s wise to seek counseling if you disagree about entering into a prenup since it should be a voluntary decision.

About the Author

Jennifer Bell is a freelance writer, blogger, dog-enthusiast, and avid beachgoer operating out of Southern New Jersey.