Prenuptial Agreements Part 2: Bulletproofing Your Prenup – Avoid Common Pitfalls
Posted by Sunshine, Isaacson & Hecht LLP on October 23rd, 2014
In my last article, I listed several reasons newlywed couples may enter into a prenuptial agreement. We ended that article asking, “So what should you do to “bulletproof” your prenup?”
Some may find their betrothed may not view the idea of a prenuptial agreement in such a favorable light. So, for starters, when broaching the issue, remember that a little finesse goes a long way. Of course, be honest with your partner about the reasons for seeking such an agreement, but avoid presenting it in a manner that leaves them with the impression that you are planning an exit strategy before the vows are even exchanged. Indeed, there have been times where a poorly-planned or ill-proposed prenuptial agreement derailed the wedding entirely.
Once your spouse is on board, how do you ensure that your prenup stands the test of time, should your marriage not?
Give yourself plenty of time before the wedding: A durable prenuptial agreement cannot be the result of undue duress or fraud. All too often, people wait until the last minute. This is a mistake. A hastily signed agreement could lead to the conclusion that it was signed under duress. If the venue has been booked, the band has been selected and the photographer paid, there can be tremendous pressure to just sign the papers and go through with the wedding.
Be totally open about your finances: The next step to a bulletproof prenuptial agreement is full and complete disclosure by each spouse with respect to their financial circumstances, including information about:
- Business interests;
- Checking accounts;
- Savings accounts;
- Retirement accounts.
The same openness is required when declaring your income – including any benefits or dividends other than your regular salary.
Make sure the agreement is not patently unfair or one-sided: While the provisions of the agreement may depart drastically from what the law would otherwise provide, it is important that the agreement contain bargained-for exchanges and not be so one-sided as to shock the conscience.
Obtain counsel: Being represented by an attorney ensures the agreement will not be so lopsided — and possibly thrown out. Keep a record of attorney communications to show that the lines of communication between counsel were open and that there were good faith discussions.
It’s been said that marriage is like a warm mattress – easy to get into but hard to get out of. In the best case scenario, a prenuptial agreement is tucked away somewhere and never used – but if things don’t work out as planned, following these simple steps should help to ensure that your prenuptial agreement will be upheld and smooth the transition.
Joshua B. Hecht
Sunshine, Isaacson & Hecht, LLP