What is a Prenuptial Agreement?
A prenuptial agreement (or premarital agreement) is probably the most important contract that a couple can consider before getting married. A prenuptial agreement is just an agreement that every couple makes before entering into the legal union of marriage.
Whether they realize it or not, every couple enters into marriage with some kind of a prenuptial agreement. That claim may sound far-fetched, but it’s true.
By the time they say “I do”, every marrying couple has agreed to either:
Let their marital and divorce rights be determined by default state laws; OR
Create and sign a written premarital agreement that allows them to take back control of their rights in a way that meets their needs.
Sadly, all marriages eventually end--either by the death of one spouse or because of a divorce. When a couple gets married without a written premarital contract, their prenuptial agreement is to allow the default state laws to control what rights they have while they are married, and what rights they have when the marriage terminates by death or divorce.
The purpose of entering into a written prenup before marriage is that it allows a couple to "pre-agree" to the terms that apply when the marriage eventually ends by death or divorce. To a large degree, signing a prenup allows a couple to control what happens in the event of a divorce or death, rather than scrambling to figure out and protect their rights under the often confusing and unfair default laws of their state.
A well-drafted premarital agreement should decrease the chance that a couple will go broke fighting each other in divorce court in the event of a marital disaster, and increase the chance that their marriage will end with minimal conflict.
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Family lawyers and analysts have confirmed that more couples than ever are requesting prenuptial agreements before getting married. Millennials have made prenups the latest wedding trend, and many progressive couples have made considering a prenuptial agreement an essential item on their wedding planning checklist.
The many pros of a prenup include the ability to:
1. Keep property owned before the marriage separate during the marriage.
2. Establish alimony terms and avoid a nasty court fight if you divorce.
3. Control how your property is distributed upon your death.
4. Avoid the pre-marriage debts of your spouse.
5. Give you peace of mind that you are protected so that you can walk down the aisle with confidence.
A premarital agreement can be drafted to provide for a minimum amount of alimony to be paid to either spouse in the event of a divorce, in whatever amount and for how long a marrying couple agrees. When a couple can agree on alimony terms in their prenuptial agreement, they can get married with peace of mind and confidence because they made a fair deal in advance—just in case things don’t go as planned.
Should I consider a Prenup?
If you are considering marriage, yes. Do it early! It may be the least-fun part of your wedding planning, but the reality is that divorce rates are too high to ignore. According to analysts and attorneys:
· 41%-50% of first-time marriages end in divorce
· 60-67% of second marriages end in divorce
· Approx. 74% of third marriages fail
Unfortunately, many marriages don’t have a fairytale ending. Those divorcing couples who entered into a valid prenuptial agreement before getting married have a document that provides certainty as to their rights, minimizes conflict and legal costs. A well-drafted prenup is like a roadmap that helps both spouses find the path of least resistance and conflict amidst the emotional turmoil of the separation and divorce process.
Smart, responsible adults routinely prepare for disasters as an obvious part of their everyday lives, but they generally protect against catastrophic events that have less than a 5% chance of occurring. The chances of a “marital disaster” approach 50% or higher, so every marrying couple should at least consider getting a prenup. More and more couples are choosing to Love Smarter, as the number of people with a fiancé or spouse who reported having a prenuptial agreement increased by 300% from 2002 and 2010.
 According to studies conducted by Harris Interactive.
Won’t a Prenup kill our romance and mean we don’t trust each other?
Many people considering marriage reject the idea of getting a prenuptial agreement because it kills or decreases the romantic whirlwind and fun of the wedding planning. No, prenups aren’t romantic contracts but discussing a premarital agreement should be an important part of every couple’s wedding planning process.
An important benefit of entering into a premarital agreement is that it forces a couple to have a candid discussion about their expectations in the event the marriage doesn’t last forever, which helps them get to know and understand each other that much better before saying “I do”. People enter into contracts with people they trust, right? When a marrying couple can meaningfully discuss and agree on what happens if their marriage doesn’t work, entering into that “unromantic” prenup actually proves that the spouses do trust each other, and they can enter the marriage with more confidence. Trust us, there’s nothing romantic about a soul-sucking, emotionally draining divorce trial.
Are Prenups Enforceable?
We get asked this question all the time, because many people doubt that prenuptial agreements are enforceable based on misinformation they have read, rare court cases, and movie fiction. Yes, a prenuptial agreement should be enforceable if it is prepared and executed in accordance with the applicable law. Most states have adopted the Uniform Premarital Agreement Act, making prenups valid and enforceable if done correctly.
Can my Fiancé Join our Calls?
As long as your fiancé does not have an attorney, absolutely! We regularly speak with both parties to the marriage, and the entire discussion is strictly confidential. Prenup Pros can only represent one party to the marriage who becomes the law firm’s “client”, because it would be a conflict of interest to represent both parties. However, whichever person decides to become our client (by entering into our Terms of Service Agreement) is free to waive the confidentiality privilege and have their fiancé join our initial discussion, or the telephone call to review the terms of your prenup. We are happy to answer questions and discuss the terms, but we cannot and will not provide any actual legal advice to your fiancé. We find that when couples participate in our prenup discussions together, they both feel better about entering into the agreement.