Legal Matters: What is a Prenup, Why Get One, and Who Should You Hire To Write It?

prenup
Image via Shutterstock.
DBD Logo

by Elizabeth Billies

In its most basic form, a prenup is a contract signed by a couple before marriage saying how its two parties would like to divide certain assets and debts if they divorce. It becomes effective only after the wedding.

A well-written prenup will list all of the assets and debts each party has at the time of the marriage. The agreement then sets forth how they will divide up any assets or debts owned either before or during the marriage. Usually, anything owned prior to the marriage is excluded from division. This means that these items aren’t shared it with a spouse upon divorce.

The prenup will also explain how former spouses will divide the property acquired together during a marriage. Usually this property is split equally (i.e., 50/50). Prenups can also include clauses about buying a home, spousal support, and a lump sum payment from one spouse to another if a divorce occurs.

Prenups generally cannot include language regarding who would get custody of the children or how much one would owe for child support. This is because such provisions are generally against the public policy of most states.

Why Get a Prenup?

Contrary to popular opinion (or misconception), prenuptial agreements are not just for the wealthy. A common excuse from engaged couples to sidestep one is that they “don’t have anything” worth the cost of hiring a lawyer to prepare a prenup. That thinking can be unsound. A pair need not have anything of value right know to agree on how to distribute future property if its marriage doesn’t work out.

Luckily, more and more couples are seeing the benefits of entering into prenuptial agreements. In fact, attorneys are seeing a rise in prenups, particularly among millennials.

One reason may be the trend for marriage later in life.

Often, by the time these parties walk down the aisle, one or both already own a house and/or have significant retirement accounts. As a result, like a two year old with a favorite toy, these millennials don’t wish to share their hard-earned assets if the marriage doesn’t work out.

Many couples who are entering a second marriage and want a prenup because of what happened in their first. These parties are still bearing the fiscal scars of their first divorce (as well as the legal bills) and wish to avoid the same fate with their second spouse.

Most important, setting forth how to divide your property and address spousal support early, when both parties are getting along well, is a great way to save time, money, and emotions should the relationship eventually deteriorate.

In other words, it’s doing the financial work of a divorce on the front end so the back end goes quickly, smoothly, and cheaply.

And who better to help you do that than hiring a divorce lawyer who knows how to write a prenup to offer protection well before the specter of divorce even arises?

Who to Hire to Write a Prenup

It is in your best interest to hire a divorce attorney to write your prenup. Knowing divorce law is key to knowing how to write a prenup.

Not all prenuptial agreements are created equal. This especially applies to prenups that are prepared by attorneys who simply don’t know what they are doing.

If your prenup is not prepared correctly or doesn’t include all of the list of assets to be excluded from division, it could be declared void. This would result in lengthy court proceedings and expenses — the exact result you wished to avoid in the first place by entering into such an agreement.

The purpose of a prenup is to set forth how partners would like assets and debts to be divided up in case the marriage ends in divorce. By signing your prenup they are saying, “I know how a court would divide up our property if we got divorced, but we are agreeing to do it another way, which may or may not be how a court would rule.”

This level of assessment — in advance of actually needing it — takes the specific expertise of a divorce lawyer.

Not all lawyers know all areas of law. For example, no one should hire a family attorney to represent them in a murder trial, no matter how many episodes of Law and Order he or she may have seen.

Understanding what rights may be given up (i.e., an alimony award or a different kind of split of the assets) is key to a good prenuptial agreement. A lawyer who doesn’t know the ins and outs of divorce law can’t possibly explain the full effect of the prenup and how this differs from having a divorce proceed through the courts.

In addition to being able to thoroughly and expertly explain divorce law, a divorce lawyer can write a prenup to protect a client from “worst case scenario.” In the blissful engaged stage, it can be hard to see how a fiancée could ever do anything to hurt an intended, either emotionally or financially.

That’s where an experienced divorce lawyer can be especially helpful.

These professionals have seen the worst of the worst. They know what the most in-love couple can do to each other when they fall out of love. Every divorce case is different and with different comes knowledge. A divorce lawyer can use that knowledge to clients’ advantages to prepare a prenup that will protect their financial interests in the event that the marriage goes south.

Therefore, hiring a professional is best. Certainly more advisable from a self-directed attempt at resolving these issues with an Internet-downloaded legal template.

It may not be the most romantic move to add “prenuptial agreement” to a wedding budget, especially when those funds are more fun to allot to additional flowers or a Belgian waffle bar at the reception.

However, hiring an experienced divorce lawyer to write a prenup is money well spent. It can save you thousands if the marriage doesn’t work out.

Professional assistance in prenuptial agreements, as well as other family matters such as custody issues, can be directed to the Dischell Bartle Dooley family law professionals. 

_______

Elizabeth J. Billies, Partner

Billies practices all areas of family law, including but not limited to, preparing pre-and post-nuptial agreements, obtaining no-fault and fault divorces, as well as litigating and settling equitable distribution, custody, and support matters.

Her clients value her collaborative and cost-effective approach to legal representation. Billies strives to resolve all matters expeditiously and efficiently while maintaining a high level of compassion and attention to detail.

If you have a divorce or family law question, please contact a member of our team or call 215.362.2474.

Advertisement