Important Considerations for Prenuptials

Considerations for Executing An Agreement
To be most effective, a prenuptial agreement should be drafted and signed well in advance of the wedding - ideally not less than a month in advance. The less wealthy spouse should have an independent attorney review the prenuptial agreement, and if appropriate to negotiate changes. While the less wealthy spouse should select that independent attorney, and the wealthier spouse should not try to influence that choice or interfere with the attorney's independence, in some situations the wealthier spouse may wish to offer reimbursement of that attorney's fee. If the agreement is signed on the eve of the wedding, it may be challenged on the basis that it was signed under coercive circumstances.

Post-Nuptial Agreements and Endorsements
If you have not signed a prenuptial agreement, you probably still have the option of negotiating for a similar "post-nuptial" agreement after you have married. Absent a threat of divorce, there is less of a chance that a post-marital agreement could be viewed as coerced. You may wish to check with an attorney if you feel this type of agreement would benefit you and your family.

Similarly, you may wish to endorse a prenuptial agreement after the wedding, so as to reflect that you and your spouse entered into the agreement voluntarily and intend it to be binding now that you are married. This will diminish the possibility that the agreement will be challenged in the future on the basis of coercion. While it can be extremely coercive to be presented with a prenuptial agreement shortly before a wedding with an ultimatim (express or implied), "Sign this, or the wedding is off", that pressure is gone once the wedding is over.

Who Benefits?
The knee-jerk assumption with prenuptial agreements is that they always benefit the wealthier spouse. In actuality, due to the requirement that prenuptial agreements be fair, they can provide significant protection and assurance to the less wealthy spouse. The less wealthy spouse will often get a relatively clear picture of what life will be like after the marriage in terms of assets and spousal support, and will also be relieved of some of the concern that a divorce would be nasty or contentious, or that a judge might offer less than is provided for by the prenuptial agreement. While premarital agreements cannot assure that a divorce will not be contentious, they often help.