PRENUP FAQs
What is a Prenup?
Prenuptial Agreements are contracts entered into by couples prior to and in anticipation of marriage, so they are commonly referred to as Premarital Agreements or Antenuptial Agreements. Because people generally use those terms interchangeably, we often just refer to them as Prenups.
Prenups are essentially written to allow a couple to agree on marital rights and divorce terms that supersede and replace those default state marriage and divorce laws that often force couples to lawyer up and battle it out in court. People who sign a premarital agreement or a postnuptial agreement (signed after marriage) embrace a set of terms that clarify and resolve what rights they have when their marriage ends by death or divorce.
A well-drafted prenuptial agreement sets the rules by which a married couple operates should they ever separate and/or divorce down the road. The purpose of a prenup is to set out the terms of the couple’s assets and debts, including property and future earnings and how they should be distributed if the marriage is dissolved. A prenup must not attempt to establish terms relating to the custody or care of children the couple may have.
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:
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41%-50% of first-time marriages end in divorce
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60-67% of second marriages end in divorce
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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[1].
[1] 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.
Does a Prenup mean I won’t get Alimony?
No, a prenup can provide for some guaranteed amount of alimony, or none at all. It is your choice. You and your fiancé can agree on (1) some fixed or varying amount of alimony, (2) some alimony if needed, (3) alimony for a period of time or until something happens, (4) amending the prenup to provide some alimony if one spouse quits work to take care of the kids, etc., or (5) no alimony at all. Read more about alimony BY CLICKING HERE.
How much does Prenup Pros Charge for its Services?
Our Flat-Fee Prenuptial Agreement Package has been discounted to $1,395. Our leading competitor's price is $2,500.
We currently offer a Flat-Fee Mediated Prenuptial Agreement package where both parties are our clients for $1,695. Schedule a Free Consultation to learn more about our mediated prenup services.
For clients who have been presented with a draft marital agreement prepared by their partner/fiancé’s attorney, our firm can be engaged on an hourly basis (as opposed to a flat-fee) to review, advise and negotiate the terms of the marital agreement. When we are engaged to review an agreement prepared by opposing counsel, our fees vary based on the scope of the services requested by our client and the attorney time spent on the matter – but we certainly can provide an estimate in advance.
Can my Fiancé/Partner Join our Calls?
If you engage our firm for a Mediated Prenuptial Agreement, definitely. Otherwise, no lawyer can represent both parties to a prenuptial agreement because it would be a legal conflict of interest. An attorney must zealously advocate for a client’s best interests under our rules of ethics, and the ability to do that would be compromised if the attorney owed the same duty to both sides of a contract. So when our firm acts as legal counsel to draft or review a prenuptial agreement for one party to a prenuptial agreement, we cannot speak with the other party at all unless the client’s fiancé/partner chooses to waive their right to independent counsel. And then we can only speak with the “non-client” party during the call to review the prenuptial agreement (after it has been drafted) if our client chooses to waive the confidentiality privilege for that call, and invites their significant other to join that call. Except for that situation, we must avoid direct contact with the other party to the prenup (particularly if that person will be obtaining independent legal representation).
When we draft a marital agreement for one party as their counsel, we must avoid creating any impression or the appearance that our firm might have represented both parties, so that is why there can be no contact with the “non-client” except when that person has waived the right to counsel and only as described above.
What is a Mediated Prenuptial Agreement?
When Prenup Pros is engaged by both parties to act as a private mediator (i.e., not court-certified or court-appointed) to assist the couple in negotiating and creating a mutually acceptable Premarital Agreement through a collaborative mediation process, we actually have to be able speak and openly communicate with both partners.
Some couples decide that they want to enter into a prenuptial agreement with the assistance of a neutral private mediator to fairly and impartially assist them explore and develop options, and if possible, agree to the terms and content to be included in a mutually acceptable premarital agreement. When we are engaged to assist with a Mediated Prenuptial Agreement, our law firm does not represent either party in the capacity of an attorney/legal counsel and provides no legal advice. Rather, Prenup Pros serves as a neutral facilitator who will assist the couple reach their own settlement and agreement on the terms of a prenuptial agreement and prepare the draft to incorporate and reflect the terms and content that the couple has agreed to through a private and confidential mediation process.
Usually both clients wish to waive their right to have the prenuptial agreement we create through mediation reviewed by independent counsel (not our firm), but either client (or both) can elect to have the mediated prenup reviewed by their own attorney after it has been prepared, if they wish.
We currently offer a Flat-Fee Mediated Prenuptial Agreement package where both parties are our clients for $1,695. Schedule a Free Consultation to learn more about our mediated prenup services.
Does my Partner/Fiancé need an Attorney too?
Except for California where there are unique statutory requirements, parties to a prenuptial agreement can waive their right to engage independent counsel to represent them in connection with a prenuptial agreement. In fact, courts have held that when one party to a prenuptial agreement does not have independent counsel, that alone does not constitute grounds to nullify the agreement. (See Matter of Barabash (84 AD3d 1363 (2011)), citing Forsberg v Forsberg, 219 A.D.2d 615, 616 (1995)). Recent case law from the Superior Court of New Jersey clarified that parties to a New Jersey premarital Agreement can indeed waive their right to counsel, but under 37:2-38 of New Jersey's Uniform Premarital and Pre-Civil Union Agreement Act, the waiver must be in writing prior to signing the prenuptial agreement. (Dobre v. Dobre (N.J. Super. App. Div. 2018)). A Florida district court enforced a prenuptial agreement that was written up by the parties without the assistance of counsel, and executed on the day of their marriage. (Stern v. Stern, 636 So.2d 735 (Fla. App. 1993)).
However, a party signing a prenuptial agreement must not have been deprived of the opportunity to have the agreement reviewed by their own counsel, if they want to. That is why it is important to present a draft prenuptial agreement to your partner far in advance of the wedding date -- If your partner wants to waive the right to have an independent attorney provide counsel, signing the agreement far in advance of the wedding date shows that the waiver of the right to counsel was truly voluntary and on purpose (as opposed to being deprived of the opportunity to engage an attorney because the agreement was presented too close to the wedding date).
As a practical matter, wouldn’t it be a shake-down on the consuming public if a person was forced to hire, pay and deal with a lawyer just to be able to sign a marital contract and have it be valid, if they otherwise understood and agreed with all of the terms of that agreement? It would be outrageous if a person was forced to hire an attorney to represent them and review their private marital agreement if that person did not want to deal with or pay an attorney. But every person signing a prenuptial agreement must have been provided the opportunity to engage their own attorney, if they want to.
It is important that each party to a prenup have a full understanding of the document, its terms and the legal consequences of those terms. A prenup is one legal document that you want written as clearly as possible, so that a non-attorney can actually understand what it says and means. At Prenup Pros, our goal is to prepare a contract that the couple can review, discuss and understand together, when the time is right.
Where can I find out more information on the Pros of Getting a Prenup?
For people living OR getting married in Virginia, Florida, Texas, Nevada, New York or New Jersey, you can just contact Prenup Pros and schedule a free, no-obligation confidential consultation. We will be happy to answer your questions and help you figure out if a premarital agreement might be a good fit for you and your fiancé.